If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?

from the rethinking dept

Continuing my ongoing series of posts on "intellectual property," I wanted to discuss the phrase itself. It's become common language to call it intellectual property, but that leads to various problems -- most notably the idea that it's just like regular property. It's not hard to come up with numerous reasons why that's not true, but just the word "property" seems to get people tied up. There are some who refuse to use the term, but it is handy shorthand for talking about the general space.

The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears.

Even if you buy into the concept of property rights for intellectual output, a look at the history of property rights suggests that the laws are eventually forced to reflect the realities of the market. Our own Tim Lee just wrote up a masterful comparison of property rights in the early United States to copyright laws, noting how property rights in the US needed to change based on usage, rather than forcing everyone to follow the in-place rules. It's not difficult to see how the same may happen when it comes to "intellectual property" as well, if various companies who rely on those laws don't recognize the realities they face.

However, if we don't want to call it "intellectual property" what should it be called? Here are some of the contenders that people toss out:

Intellectual Monopoly: Popularized by economists David Levine and Michele Boldrin, who have a fantastic (and well worth reading) book called Against Intellectual Monopoly. As they point out, patents and copyrights really are monopolies much more than they are property rights. In fact, as we noted early on, that's exactly how Thomas Jefferson and James Madison referred to the concepts when discussing whether or not such monopolies should be allowed by the Constitution.

Intellectual Privilege: This one is being popularized by law professor Tom Bell, who is working on a book by the same title. While this is nice in that it retains the "IP" designation, it's also a bit cumbersome and requires a pretty detailed explanation for anyone to understand. For that reason, it may have a lot of difficulty catching on.

Imaginary Property: Another one that retains the "IP" designation, and is growing in popularity on some blogs. It's also a little troublesome because it's probably the least accurate (and may also imply something entirely different than copyrights or patents). It gets rid of the "intellectual" part, and keeps the property part, even while calling it imaginary. But, intellectual output isn't imaginary. It's very real. That doesn't mean it's property, of course, but imaginary property may set people off in an entirely different manner.

Others: Other suggestions are even less common, but deserve to be mentioned as well, if only briefly. There's use monopoly. Richard Stallman has suggested and rejectedImposed Monopoly Privileges (IMPs) and Government-Originated Legally Enforced Monopolies (GOLEMs), which are cute, but... not very practical. Some have even tried to tie the concept more closely to the "Promote the Progress" constitutional clause -- though, that really only covers copyright and patents. Besides, you again have the problem of it being cumbersome.

In the end, I don't think that there's really a good answer. I think it makes sense for it to be context specific. Using "intellectual property" too freely is definitely a problem, as it creates a mindset and a framework that isn't accurate for the type of rights provided by patents, copyrights and trademarks. Yet, all of the other options have their own problems as well. I tend to think that whenever possible, it's best to use the specific type being discussed (i.e., patents, copyrights, trademarks, etc.). In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property.
Links to other posts in the series:

Re: anecdote

This is not coherent. What does Karl Marx have to do with anything at all? It feels really, well, surreal, and perhaps a bit detached.

And if you ARE the angry dude: Didn't you say you were leaving? I know you have better things to do with your life then argue with people on the net, trying to convince them of a point by insulting them.

That's not at all the right way to convince someone of a point: The way to convince someone is to look at things from their perspective, and to use their own thought processes against them, proving to them, from their base assumptions, their position is wrong. Or to prove conclusively that their base assumptions are wrong.

Many people argue poorly on the internet: Myself included on bad days. I really wish people were better at debate and argument. I'm suck and tired of loud, angry, nuts with extremist positions on the left and right. I want to hear from the silent majority.

Re: Re: Re: anecdote

"And I don't really argue with you, techdirt people"

Because you've proven time and again that you don't actually have the ability to have an intelligent discussion on copyright, trademarks, patents, or apparently anything else. I guess acting like a 6 year is therapeutic for you.

"I just shit on you, haven't you noticed ?"

In other words, you make an ass of yourself. And let's not forget the lame Russian insults when someone hurts your feelings.

Re: Re: Re: anecdote

Re: Re: anecdote

Actually, there's a good point behind his post, but maybe it's too subtle for you to see. Compare the suggestion that a man has two skulls with the notion that an idea can be owned as property. In the former case, a very scarce resource is made to be less scarce, as if it could multiply by itself as a man ages. In the latter, an entities which naturally and freely is copied without dilution is pretended to be scarce. Think a bit more deeply next time.

Re: Re: Re: anecdote

...the notion that an idea can be owned as property.In the latter, an entities which naturally and freely is copied without dilution is pretended to be scarce.

Ideas are scarce. Fact. Granted, some people pretend they are more scarce than they actually are. Others, however, pretend that ideas are infinitely abundant... An infinite amount of copies are possible on the grand scale, no doubt, but an infinite amount of original ideas are not possible on the grand scale. Unless by infinite, you strictly mean that you can't count the number.

Re: Re: anecdote

Imaginary property

I imagine you realize that at least some of us who are calling it "imaginary property" are doing so in a deliberate attempt to inspire ridicule of the very idea that ideas can be owned. The current uses of patents and copyright descend to the ridiculous all too often, and that point ought to be driven home, hard and often.

I suppose that you want your analyses and recommendations to be taken seriously and fear that adopting a term of ridicule will make that harder. Do what you think you should, but sometimes you need to figuratively slap people in the face to get them to pay attention. Calling it "imaginary property" might just be the slap in the face that some people need.

Re: Imaginary property

"Slapping people in the face" only makes them angry. Quite frankly, I get angry when people call it imaginary property because it implies that it's all part of the public domain - which is very, very wrong. Slapping me in the face with that phase only makes me more resolute fight back.

Mike, I agree with KD.

The first time I saw the "Imaginary Property" variant of IP, I immediately understood it to be pejorative with a ridiculing connotation.

I just wish I possessed the linguistic talent to distill "A largely problematic and burdensome group of laws that allows and encourages adults to behave like overly territorial children in respect to ideas and expressions." down to a few well chosen words.

Infinite Goods Tied to Finite Goods

This has always been the point where I stumble in discussing this topic, perhaps someone can point me in the right direction.

Granted- "If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears."

That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

Though I loathe the inefficiencies begotten by DRM and copyright litigation, I admit that I am unable to understand how we would else incentivize the creation of creative goods in the first place. Lessig's panacea of Some-rights-reserved seems to fall flat when a risk-averse author decides to reserve all rights because what do they stand to lose by doing so?

Another alternative frequently mentioned on TD is the idea of leveraging complimentary services or goods which are finite. Perhaps I am cynical when I envision artists suddenly writing songs exhorting fans to buy more t-shirts, drink Pepsi and buy Good-Year tires. It suggests that we are incentivizing an inferior goal (I am not suggesting that ads are bad, just thinking that musicians make lousy ad-men)

Hopefully I am completely missing the point and someone can correct my assumptions or conclusions. Because I want to believe the credo of a new economy centered on infinite resources.

Re: Infinite Goods Tied to Finite Goods

That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

The faulty assumption here is the idea that artists aren't able to eat when they adopt these models. As we've pointed out repeatedly here, adopting these models actually expands the ability to eat, by making the artist more popular and more able to drive revenue through alternative models, which often pay much better than the old models.

The "risk" of creation is actually less under this model. Under the old model the chance of making any money from being a musician was quite low. With this model, you can be profitable with a much smaller number of fans and you don't need to sign your life away to a label.

Another alternative frequently mentioned on TD is the idea of leveraging complimentary services or goods which are finite. Perhaps I am cynical when I envision artists suddenly writing songs exhorting fans to buy more t-shirts, drink Pepsi and buy Good-Year tires. It suggests that we are incentivizing an inferior goal (I am not suggesting that ads are bad, just thinking that musicians make lousy ad-men)

There are two faulty assumptions here. First is in thinking that the complementary goods need to be tangible trinkets, and second is assuming that those complementary products are incidental to the main part of the artist's business. As we've pointed out, the biggest "scarce" resource for a musician is the musician themselves. So they sell *access* not t-shirts. They sell concert tickets (scarce). They sell the ability to write a new song (scarce until created). They sell the ability to have a private concert or backstage passes or anything along those lines.

Then when you start realizing these types of scarce goods are made more valuable to more people when you use the infinite goods (in this case, music) to advertise them, suddenly the "risk" you talk about earlier is a lot lower, and the opportunity to profit is much, much bigger.

Re: Re: Infinite Goods Tied to Finite Goods

Another good example is BOOKS. I believe that authors who put their works out in digital form for free are finding that they drive UP book sales. The reason is that it's still expensive to physically print out a book. For some strange reason, real people still seem to like "dead tree editions", especially of longer literary works. People will read only so many pages on an e-book reader before their eyes tell them they really need a hard copy book printed on real paper.

Re: Re: Re: Re: Infinite Goods Tied to Finite Good

It'll take a few years before the inertia of paper goes away, and I'll bet that, like manual transmission, there will still be a handful who prefer real paper... but, yes, paper demands are going far down.

Re: Re: Re: Infinite Goods Tied to Finite Goods

The converse (and the reason for the rise of said e-readers) is that people will only buy so many books until their living space becomes so full of stuff that they have to (or are forced to) sell it or give the stuff away.

Re: Re: Infinite Goods Tied to Finite Goods

...and more able to drive revenue through alternative models, which often pay much better than the old models...

-----------
Easy to say, harder to prove.

Please elaborate on how an artist/songwriter gets paid if his music is freely downloadable and he doesn't tour. Then explain how he's supposed to cover studio expenses with free o/

He needs to get that money from somewhere... He also needs to eat.

He put a lot of time and effort into recording his music and deserves no reward for this from people that download and listen to it then put it into rotation in their car? I guess he could sit on a streetcorner with an open case and live from the kindess of passersby. Would really suck in winter when it's 10 degrees and your fingers are too cold to play, but you need to play to get some bread. I guess he could just go to the soup kitchen like the rest of the bums.

He'll be hard pressed to find a consulting job to support his music like a software developer can with supporting his software, since if all music is free, it's unlikely that anyone could pay him in the capacity of producer or even studio musician.

You can't apply the FOSS model to music and art. It just doesn't work. It's a whole different dynamic. I know because I write software and write/record music.

I guess songwriters are expected to live on the street in a box?

You guys just know it all... Idealism is great here on the internet. To a working musician it's meaningless. They need money to eat, not lofty ideas of what they should be doing with their music.

Re: Re: Re: Infinite Goods Tied to Finite Goods

Not really, once you actually look at the economics and historical examples.

Please elaborate on how an artist/songwriter gets paid if his music is freely downloadable and he doesn't tour. Then explain how he's supposed to cover studio expenses with free o/

Well, first of all, that's a little like saying "please explain how the factory worker makes money without going to the factory." You're putting a condition on the situation that limits the opportunities to make money.

However, it does not exclude all models, as is quite clear from a variety of circumstances. All you need to do is connect the infinite goods (the music) with other scarce goods. Concerts may be the most obvious, but are hardly the only one. Take a look at the Jill Sobule example we wrote about. She's getting true fans to pay up for additional extras, including being able to interact with Jill or getting your name as an executive producer or having a song written about you or even getting to perform on the recording.

There are plenty of ways that "access" need not contain concerts, though it does shut off a large revenue stream.

Hell, Trent Reznor showed one way just this week: by making a physical product (his deluxe collection) worth paying $300 for. Even though the music was free. He earned nearly a million dollars just on that alone. As I said when I wrote about that, this can work on a smaller scale for smaller bands as well.

He needs to get that money from somewhere... He also needs to eat.

Over the past few years, we've given probably a hundred examples of musicians making plenty of money by giving their music away for free. Some get very creative as well. My favorite is the band that started their own travel agency to help fans travel the country to see their performances. For a while, at least, the travel agency part was making more money than the music sales.

I guess songwriters are expected to live on the street in a box?

Not at all. Just because you aren't creative enough to find a business model, it doesn't mean they don't exist. Songwriters (just like most software writers or journalists or whatever) can certainly be paid on a fee-for-hire model. If you write a good song that becomes a hit then your fees go up for future songs you write... just like if you're a star programmer your salary goes up, or if you're a top journalist your salary goes up. Same thing.

You guys just know it all... Idealism is great here on the internet. To a working musician it's meaningless. They need money to eat, not lofty ideas of what they should be doing with their music.

When we've pointed to example after example after example of this working in practice, as well as detailed explanations of the economics as to WHY it's happening in practice, this is not "lofty idealism." This is explaining what's actually happening and how to make it work for you.

Re: Re: Infinite Goods Tied to Finite Goods

"...why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?"

First, Mike, why do we do anything? Not every kid who loves to shoot hoops in the park wants to become a wealthy NBA superstar and all that goes with it. Nor does every person who loves to make up stories want to do it full time for a living. Much of what we do, we do for love, a sense of satisfaction or the feeling of a job well done.

When it comes to making a living through some talent we possess, I don’t think anyone begrudges us for wanting control over our work for the sake of making a living. Problems arise and bad laws are written only when the irrational energy of fear and greed raises its ugly head. When, instead of using money to facilitate the exchange of goods and services, and further creation, it’s used, instead, to accumulate more money, power and privilege. With this mindset, when is enough, enough? When do the means not justify the end?

Why would anyone want to use money, power and privilege to measure success when it has no heart? Why not use love, truth and joy? They’re a lot more fun and they have lots of heart.

Insatiable greed is the kind of energy that foments endless war for profit. It’s the kind of energy that bribes politicians and cripples governments to get legislation passed for its own benefit at the expense of others. It’s the kind of energy that forms secret alliances and meets in back rooms to figure out new ways to gain even greater control over others. Greed is the kind of energy that wants to put a price on everything and a toll booth on every action so it can add to its wealth. It’s irrational and destructive. It’s a cancer that destroys societies, reason and balance.

At the same time, it serves as a challenge to all of us to understand it and move beyond it. It is but one of many challenges we employ to stimulate growth and bring about change.

(On June 21, 1788, the U.S. Constitution was ratified.

Under Article I, Section 8, it says, "the U. S. Constitution gives Congress the power to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.")

How does unlimited copyright protection “Promote the Progress of Science and the useful Arts”? And where do man’s ideas come from in the first place? Don’t they come from the inner realms of thought, dreams and imagination, a place where we can all share ideas freely, without limitation?

Before I quit, I’d like to say how impressed I am with Techdirt.com, the writers and the posters. There’s a lot of heart and mind here. Thank you for who you are and what you do!

From We Create Our Own Reality:

The challenge of being and creation is learning how to use the power of thought and imagination to shape energy, money included, into a pleasing reality. The prize is a sense of satisfaction, the feeling of a job well done. Like learning how to walk and talk, it is a personal, subjective endeavor that requires creative aggression. It is a great balancing act where we, like babies, must accept falling down as part of learning how to stand up.

Remember:

Thoughts are “things” with a reality of their own, and you, an artist. With thought in the form of beliefs, attitudes, values and expectations, you paint the landscape of your life. Create a great day!

Re: Infinite Goods Tied to Finite Goods

While "Artists need to eat", I feel that part of the problem is that people are hung up on the final output produced, rather than the process of creating the artifact. That is, we should be paying artists to create, and not necessarily for that item that they create.

In a sense, this is similar to what we now see in the open source software sector. Maybe companies invest large sums of money to pay skilled developers to create software. The worth of the software is in the utility, but the monetary exchange is for the act of creating rather than for the finished goods.

Once created, everybody can benefit from the software since it is open source. Similarly, once created anybody can benefit from listening to a copy of a song.

So the issue really becomes one of changing the business model and the point of remuneration rather than trying to impose artificial constraints on information.

Re: Infinite Goods Tied to Finite Goods

Yes, I agree, artists do need to eat, but do you want to do so at the expense of others? As well, how much do artists really need? The truth is that if your art is good and enriches those it touches, I believe that you'll always be able to sustain youself, however, true wealth can not, and is not measured in only dollars.

Besides, in my opinion, it's healthier to be a little hungry than a little fat, and some struggle is good for the soul and the character. Personally, I wonder just how much has been lost because we've burdened many poor souls with excessive wealth.

Re: Re: Infinite Goods Tied to Finite Goods

Dude, you are a f****** idiot

I will start confiscating your paychecks, or rather your weekly allowances, so you can feel a little hungry, which you think is good for any human being
heck why all those Osvenzim victims complained, if it was supposed to improve their souls and characters ?

Re: Re: Re: Infinite Goods Tied to Finite Goods

Again with the insults, you know it would work better if you phrased it something along the lines of 'oh? Well then, what if you were making less then a living wage. Would you still be of the same opinion? And artists tend to make less art when scrabbling for food and housing'

Re: Infinite Goods Tied to Finite Goods

Artists do need to eat, however over the centuries many artists ate, maybe not well, but many did all right. Some of the greatest art of the world was created with out copyright protections. Mozart and Beethoven both dedicated their lives to music and, as far as i know, did not have any protections for their productions.

Re: Infinite Goods Tied to Finite Goods

I call it: Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place.

It's not clear that creating an artificial shortage of an otherwise free good is the best way to promote progress. Artists (and Hollywood studios) might be compensated by a monthly Internet Downloading tax, or by fees paid by publishing sites with over 1000 downloads per month. There's even precedent: No one thinks broadcast radio is bad for the recording industry.

But if we accept that copyright is the best way to promote "progress", there's still the question of degree. Lifetime of the author plus 70 years? Please. Are musicians more important than, say, doctors? How many people can hope to leave an impression on the world 70 years after they're gone? If you knew you could, would lack of royalties for your grandchildren "disincentivize" you?

Finally, what kind of society do we want? We haven't added a popular icon to the public domain in my lifetime. Santa Clause and Uncle Sam were commercial inventions, covered by copyright once upon a time. When will the same thing happen to (yes) Mickey Mouse and Betty Boop and Superman? When will I be able to adapt the music of my youth -- or even my parents' youth -- to my home movies and post it on the Internet for friends and family to enjoy without fear of a C&D from the RIAA? How long, and to what end, do we want to keep our shared popular culture in private hands? And how much corrosion of the rule of law (and respect for the law) do we want to tolerate by prohibiting something that can be controlled only in a police state?

There are lots of ways to ensure artists eat, if "eating" doesn't mean 10 acres in Beverly Hills. And "progress" surely can't include locking up our culture and suing kids who are sharing music with their friends. Focus on finding a solution that works for society. If the awards ceremonies are a little less glamorous, we'll muddle through.

Re: Infinite Goods Tied to Finite Goods

Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place.

Since you're talking about music, please remember that there are two copyrights which apply to recorded music. The sound recording copyright (the one which is currently being abused in the legal system) belongs to the record label by default. The creators of the music have no "monopoly" over sound recordings, it goes to whomever pushed the "Record" button.

What really is "disincentivizing the creation of these goods in the first place" is the knowledge that the record label will do everything in their power NOT to pay the artist for the sale of physical goods.

Remember the Bay City Rollers? They initially received an advance of $250,000. After selling more than 70 million albums, they're still waiting for the first royalty check. Sony has $80 million of the BCR's money that they're holding because they lost the original contract and purportedly don't know how to divide it up properly. So they're keeping it.

That was way before the Internet. This is how the recording industry treats artists when business is booming.

For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis?

The same reason that we used to like hearing our songs on the radio, except you don't have to pay to make it happen. Musicians never got paid for radio play, either.

Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

There is no cost or risk involved in creating music. You need a pencil, a piece of paper and an idea, not in that order. The cost and risk comes in when you try to convert the music into physical products and sell them.

Musicians make money for performing, whether it be on stage or in the studio. The price is negotiated before we start playing, and most of us will insist on being paid in full before we even open our guitar cases.

"Music is everybody's possession. It's only publishers who think that people own it."

Re: Infinite Goods Tied to Finite Goods

You raise a good point. If I were a musician, why would I continue to produce songs at my expense if they are freely available to all? Well, as a musician I tend to think that the music is a gift that should not be paid for. If you buy a CD, you are buying the physical CD not the contents. Musicians also profit from merchandise and ticket sales.

I guess the bottom line is that if something is truly infinite and you charge others for the use of it, you are effectively making it finite because at some point everyone who is willing to pay for it will have done so.

Re: Infinite Goods Tied to Finite Goods

That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

I see you have reasons to believe the so called "monopoly" should be granted sometimes. I do agree with you, but this does not make the monopoly any kind of "property". It's just like saying, for example, that hurting someone is the same as stealing. It may be wrong, but it is not stealing.

I guess the author is not saying "copyrights" or whatever are right or wrong, ethically speaking. He is just saying it is not property.

Re: Infinite Goods Tied to Finite Goods

That is understood, but the issue as I understand is when tangible property is employed to create this infinite resource. I call it: Artists need to eat. Namely by not granting this "monopoly" to the creators we are disincentivizing the creation of these goods in the first place. For instance why would musicians try to create and sell music if instead it is swarmed through the torrent network gratis? Why should a musician bear the cost and the risk of creating music with no expectation of a return on their investment?

I think this is the most classic failure in people's imagination. While arguing that incentives help encourage innovation, it it not necessary to take such a gargantuan leap as to say that money is the only incentive to creation or that creation would not occur in the absence of government enforced monopolies.

People create all the time for non-finantial reasons. How many times in your life have you drawn a picture? told a story? given advice? written a term paper? hummed a tune and made it up as you went? made up a joke? changed a joke because you could not remember the original telling well wnough? answered a question you had not previously considered?

On your computer and on the internet, there are many activities you do not get paid for as well. You compose email, chat on IM, argue on fora, alter the colours or background of your desktop, listen to random compilations of your music collection, or maybe even write programs or scripts to get tasks done. Nearly all of these activities generate not only copyrightable but copyrighted works. Do you ask for money for any of these things?

Every one of these acts is an act of creativity, and we all do it in the natural course of communication. Almost none of us get paid to speak or write, but we do it all the time. In my case, I think it would be more likely that people might pay me to shut up. Maybe I can try to claim a copyright on silence like some other crazy people.

As far as creativity is concerned, I have seen more creativity in the last few years on the internet than I saw in the first thirty or so of my life in all other media combined. There are many examples of this. You, of course, posted because you had an opinion, not because you might get a multimillion dollar publishing contract, nor because some periodical paid you to write it. Genres like Fanfic -- a group of people who write entire books to extend upon the characters in popular stories -- exist entirely hidden from the profit incentives of copyright. In fact, if Fanfic were exposed to the light of day copyright holders would sue them into oblivion. Almost no one's websites pay. The percentage of websites that pay even enough to maintain their operational costs cannot be more than one in one hundred thousand (if that). The blogosphere is currently growing at an exponential rate, filled with the creative output of every Tom, Dick, and Harry -- and their mothers and grandmothers. Flickr probably has more posted photos than all the photographs taken before 1990 (who pays people to photograph their children and pets?). YouTube is absolutely inundated with videos made by people who just want to entertain their friends.

Why? For a million reasons, but mainly because people are social animals and need to communicate. Art and creativity are a part of our dialogue with the rest of the world. They are the new speech -- our mouths are limited apparati for communication. This is the speech that we make with our artificial mouths, and we are all artists. Paychecks are a totally separate issue.

Intellectual Monopoly +1 vote

I am used to the term "intellectual property" and use it all the time. But we live in a world where we slice and dice the meaning of words. The word "property" clearly creates the wrong impression. It is also a word that is being used to create the image that the content producers are valiantly attempting to protect their so-called "property" when in fact they are depriving the users of the content of their property right to that content. So if we have to choose a designation, I will go with "Intellectual Monopoly".

Re: Intellectual Monopoly +/-1 vote

How about "Idea Monopoly", it isn't intellectual after all. I also use "legal prior restraint" (or "illegal prior restraint" when someone misspells it "DRM") and the Lawyer Leveraged Concept (LLC 8-) rings ironic.

IPR (Illegal Prior Restraint) and LPR (Legal Prior Restraint) do the best job of describing what is being done with the correct social leading.

Re: Intellectual Monopoly +1 vote

[sarc]The use of the word 'property' definitely confuses people. We need to completely stop using the word property to refer to items (tangible or intangible) whose ownership has been granted to identified entities by law or possession.

Property actually refers to a characteristic of something. For example: Liquidity is a property of dihydrogen oxide (water) and also molten metals. obviously there is no way that anyone can grant ownership of the liquid property of water, so it stands to reason that laws giving ownership of a property is nonsense.
[/sarc]

Intellectual Property has nothing to do with Real Estate. Very few people, other than lawyers confuse Real Estate and legal rights to control use of an idea.

In fact due to the legal rights granted to someone who registers an idea, Intellectual Property can be interchangeable with Personal Property under the law. This includes a limited period of ownership (ownership==control of use).

An orange is an example of perishable personal property. The fact that it has a very limited useful life does not remove it's status as Personal Property under the law.

A:

Re: A:

Re: A:

Censorship is when a third-party stops you from communicating ideas to a second party. When I stop you from using the product of years of hard work because you won't pay for it, you call it censorship? Censorship of myself? You want to have everything for free or you're going to throw around insults like 'censorship' at the very creators and artists whose work you want to steal?

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"Censorship is when a third-party stops you from communicating ideas to a second party.

As is precisely the case in nearly every copyright-based takedown, suit, or other attack on websites and p2p.

Not only is copyright enforcement censorship, but so-called piracy fights what everyone censorship."

Mike Linksvayer you are a liar! You have yet to put up a link here at Techdirt that has anything to do with censorship. Even the Happy Birthday link advised "you may be" sued for infringement rather than you WILL BE sued. All of the links you posted are about financial gain from distribution or access, NOT censorship. All of the infringement suits I have ever seen linked are about financial gain, not censorship.

Censorship infringes free speech, not financial gain; although infringing free speech can have a side effect of harming financial gain. Copyright is all about financial gain, not free speech. Enforcing copyright does not in any way, shape, fashion or form infringe free speech.

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I'll throw up an example for you:

Carlos Mencia claiming copyright infringement on Joe Rogan. Carlos was "caught" stealing a joke, and Rogan called him on it. Personally, I don't think the joke in question was terribly original, but that really isn't the point. Mencia issued the DMCA takedown notice to essentially censor a form of criticism. Granted, not every DMCA takedown notice concerns censorship, but this one certainly does.

Re: Re: Re: Re: Re: A:

As is precisely the case in nearly every copyright-based takedown, suit, or other attack on websites and p2p.

No, it's not. Copyright-based takedowns, suits, or other "attacks" are done by people owning the rights. (If I remember correctly, it's illegal to post a takedown notice if you're not the copyright holder.) When the IP owner prevents you from passing around their IP, it's their legitimate right to prevent you from using their work. When a third-party (e.g. government) does it, it's censorship.

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The copyright holder is a third party to the conversation between someone publishing infringing material and the person downloading the material. The copyright holder wants the state to prevent this conversation, just as a censorious churchlady wants to prevent the conversation between a porn distributor and porn reader. You may think the copyright holder is a just censor.

Re: Re: Re: Re: Re: Re: Re: A:

The copyright holder has been granted control of the copyrighted material. This means in short that he has the right under the law to decide when the material can be distributed.

The churchlady assumes that her religious beliefs grant her the right to contol distribution of material copyrighted by a Third Party or else Freely distributable. The law gives the parties targeted by the churchlady permission to ignore her.

Yes she can file a lawsuit that will usually be thrown out of court, but occasionally she will win when the politicians or judge wish to enforce their personal moral code or gain political support. This is not legal (frivolous lawsuit) but is often effective when the target finds settlement is cheaper than defense or retaliation.

Re: Re: Re: A:

As is precisely the case in nearly every copyright-based takedown, suit, or other attack on websites and p2p.

No, it's not. Copyright-based takedowns, suits, or other "attacks" are done by people owning the rights. (If I remember correctly, it's illegal to post a takedown notice if you're not the copyright holder.) When the IP owner prevents you from passing around their IP, it's their legitimate right to prevent you from doing that. When a third-party (e.g. government) does it, it's censorship.

Re: Re: Re: Re: A:

If I remember correctly, it's illegal to post a takedown notice if you're not the copyright holder.

I believe you are correct that filing a false takedown notice is illegal, but that doesn't negate the fact that it does happen. Uri Geller, the fake psychic, is notorious for it. Mencia, as I previously cited, has done it. Various others have done it as well, with a varying success rate.

Here's the problem: As soon as a DMCA takedown notice is received and ownership is claimed, the host is required under the safe harbor provisions to remove the allegedly infringing material. It is then up to the person who posted the material to file suit over the fake takedown. The system is set up with a presumption of guilty until proven innocent.

Typically, posters do not have the means or the interest to pursue legal action. So perfectly acceptable material is effectively censored by anyone claiming ownership of material. In Uri Geller's case, YouTube was hosting video clips that showcased his "skills" in a less than favorable light, including a clip from the Tonight Show with Johnny Carson. NBC might have a case for a takedown notice, Geller certainly does not. That didn't stop him from issuing the notice, however.

Luckily, this kind of abuse can, in some cases, be countered by the Streisand effect, but that's only a band-aid on an inherently flawed piece of legislation.

"imaginative property"?

my issue with the proposed term "imaginary property" is not the whole issue with "imaginary" implying "fake," but that it ALSO requires a bit of motivation behind the term, "imaginary"; the imagination figures into much of our ideas in the first place in order to conjure something original based on what concepts we've connected together in our heads, which is probably what we mean we say "intellectual property."

if we are to go on the same war path as to pick apart semantics of "intellectual property," we should also equally pick apart "imaginary property"; imaginary today was what was considered "fancy" about 200 or 300 years ago - that is to say, "fancy" is simply a conjuration of images that is connected to what we've already observed, such as putting horns on a horses head (unicorn) or people with elongated ears (elves). however, IMAGINATION is simply the faculties in which we connect our experiences together in order to formulate an overall concept, which, through language, is then disseminated for others to understand and absorb.

i suppose a better proposition is to name it "imaginative property" rather than "imaginary property," since "imaginative" implies a sort of action, whereas "imaginary," in our common parlance, implies the quality of the property in question, which would make people uneasy when they see that "imaginary property" doesn't SOUND like it should exist in the first place.

but picking apart semantics seems to be a bit of a slippery slope... perhaps a survey into what people actually think of when they hear "intellectual property" would lend us a basis for argument, rather than isolating the phrase and saying, "oh it always implies something tangible because of so and so definition."

Re: "imaginative property"?

Re: Re: "imaginative property"?

no, i do understand (to a degree) what is being said; i'm mostly opposed to the whole idea of picking apart semantics just because it seems to imply something totally different. while this is a valid claim (IF indeed the common person perceives "property" as a "real thing"), it's also a pointless exercise that seems to culminate in creating terms that's going to obscure the concept even further. i duly place my faith in the common person's understanding of the phrase (or at least somewhat of a grasp on what it really means) rather than this crap of coming up with terms that, while it doesn't sound esoteric, simply goes against what people already know from "intellectual property" and will serve to obscure the meaning even further.

If I Buy Something, Do I Own It?

It's quite easy to see why the very concept of "intellectual property" is wrong: because it interferes with property rights.

To see why this is so, consider the question: "If I buy something, do I own it?". To anyone who believes in property rights, the answer has to be an unqualified "yes". But "intellectual property" invalidates that answer, because it imposes restrictions on what you can do with your own property: having bought a CD or DVD, you are not allowed to copy the information to another format, play it on another player, all that kind of thing. Companies are even trying to impose conditions on your ability to transfer ownership of something you've bought to someone else.

Re: If I Buy Something, Do I Own It?

you are not allowed to copy the information to another format, play it on another player, all that kind of thing.

All those things are fine. What authors are against is giving copies of their work to a thousand of your closest friends, or reselling multiple copies of it. If everything was as open and free and you would like, then there should be no laws against buying a CD at the store, burning a thousand copies, and selling them at $1 each, undercutting the real artist's sales. Without the need to have talent, studio time, marketing, etc - you could always undercut the artist's selling price.

Re: If I Buy Something, Do I Own It?

BiC wrote:

What authors are against is giving copies of their work to a thousand of your closest friends, or reselling multiple copies of it. If everything was as open and free and you would like, then there should be no laws against buying a CD at the store, burning a thousand copies, and selling them at $1 each, undercutting the real artist's sales.

In case you haven't been reading other Techdirt articles, let me just point out that artists make hardly anything from CD sales--most of the profits from that go to the record label. Since they don't make money, it follows that the artists have little or nothing to lose from allowing CDs to be copied and passed on. Indeed, they have everything to gain from letting this happen.

And, of course, there's the fact that trying to restrict such activities is a violation of property rights.

Re: Infinite Goods Tied to Finite Goods

I agree with the position that spreading music files can help the artist by increasing awareness and then motivating people to buy 'access' to the artist via performance etc. As a matter of fact, as kevin kelly points out here, the artist can do quite well if this relationship is nurtured:http://www.kk.org/thetechnium/archives/2008/03/1000_true_fans.php

However, there is another aspect of this that is separate from the question of the 'intellectual property' of the recording, and that is of service marks. Suppose a person went around calling himself 'Beck' and tried to sell concerts and other things with this name on it. Now he's not the real Beck and so the public would be fooled and the real Beck would lose an opportunity to make a sale. In this case, i think it would be correct for the real Beck to sue the imposter for damages and protect the name under which he performs.

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Re: Re: Infinite Goods Tied to Finite Goods

However, there is another aspect of this that is separate from the question of the 'intellectual property' of the recording, and that is of service marks. Suppose a person went around calling himself 'Beck' and tried to sell concerts and other things with this name on it. Now he's not the real Beck and so the public would be fooled and the real Beck would lose an opportunity to make a sale. In this case, i think it would be correct for the real Beck to sue the imposter for damages and protect the name under which he performs.

Hi Dave.

Yes, I tried to address that in my prior post in the series. That's a trademark issue -- which I don't really consider to be intellectual property (which is supposed to be about exclusive rights for promoting progress). Instead, trademarks, like the situation you describe, are really about consumer protection -- not letting someone who is *not* Beck fool consumers into believing he is...

So I don't consider that to be an IP issuer per se, but really a consumer protection/false advertising issue.

Irrational Property

Just thought of that. Irrational in the mathematical sense. Its property raised to the square root of -1. You need it to represent some things, but you cannot hold it. Think of it as describing "the area owned". 8-)

Imaginary Property

Well, with a topic like this I feel obligated to comment, given that I am the one trying to popularize that term.

There are a few reasons why I prefer it, but it seems clear to me that many misread part of the intent. Imaginary property is intended to imply that it is only imagined as property when it is not, and also that it is a legal fiction being imposed upon the world, given that ideas cannot be treated the same as property sensibly.

After all, we call real property property because it causes one inconvenience or worse when another uses it and the owner is unable. Yet with ideas, as the metaphor goes, you can light your candle from another's without diminishing their light. Indeed, more light is available to all in that case and everyone richer. It therefore seems perverse that we should extinguish unlicensed candles in the hopes of having more light.

But you are correct to note that it does suffer from some drawbacks, not the least of which is throwing disparate areas of law under the same rubric. Unfortunately, so long as law classes teach the term, it is far beyond my powers to undo it. You can't really convince people to "unthink" things, you can only get them to think new ones, and it helps to tie the new ideas to old ones. Therefore, I chose the term Imaginary Property as a form of protest to highlight the issue and started submitting all the things I was interested in anyhow to Slashdot. I guess this proves that my plan is working :-)

Oh, and I see that someone likes the term Irrational Property. I think I was the first to use that, as a joke, in my story about that law that would've recognized someone's "invention" of squaring the circle, recognizing pi as their "property", even though they thought it was something like 3.2, when it's actually an irrational number not expressible as any rational number (i.e. fraction). In other words, pi was almost someone's irrational property.

Re: Imaginary Property

After all, we call real property property because it causes one inconvenience or worse when another uses it and the owner is unable. Yet with ideas, as the metaphor goes, you can light your candle from another's without diminishing their light. Indeed, more light is available to all in that case and everyone richer. It therefore seems perverse that we should extinguish unlicensed candles in the hopes of having more light.

Don't be silly. Your analogy bad. If you really want a proper analogy, then how about this: you spend your day out in the forest hunting animals. You come back to your tribe and discover that another man has spent the entire day building a fire by rubbing sticks together. He is tired from the work, and his hands are bruised. He says, "You can use my fire if I can have some of your meat". You reply, "I can take your fire without reducing your portion of it." then you take a stick, light it on his fire, and use it to cook your meat, sharing none of your meat with anyone. Then you expect him not to be angry with you, and you convince yourself that you haven't done anything wrong.

Re: Re: Imaginary Property

Don't be silly. Your analogy bad

You recognize that "analogy" comes from Thomas Jefferson, the father to our entire IP system?

you spend your day out in the forest hunting animals. You come back to your tribe and discover that another man has spent the entire day building a fire by rubbing sticks together. He is tired from the work, and his hands are bruised. He says, "You can use my fire if I can have some of your meat". You reply, "I can take your fire without reducing your portion of it." then you take a stick, light it on his fire, and use it to cook your meat, sharing none of your meat with anyone. Then you expect him not to be angry with you, and you convince yourself that you haven't done anything wrong.

And here it is your analogy that is flawed, because you have set up a very special set of circumstances that is unlikely to occur and would have societal ramifications beyond the nicely packages story.

Re: Re: Re: Imaginary Property

you have set up a very special set of circumstances that is unlikely to occur and would have societal ramifications beyond the nicely packages story.

No, I've set up *very* reasonable circumstances. As a software developer, I spend *years* of my life creating digital content. People tell me that it shouldn't be protected IP. You say elsewhere that I can use this kind (zero-duplication-cost) content to increase the value of other scarce goods. Well, that might work for musicians who want give away music (zero-duplication-cost) to sell concert tickets (a scarce good), but you can't perform software. (Yeah, RedHat has made a living off of providing customer support, but then, they didn't develop Unix, they just modified it.) The business model you propose doesn't fit everybody, so stop trying to undermine business models that don't fit with your view of how the world *should* work.

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The business model you propose doesn't fit everybody, so stop trying to undermine business models that don't fit with your view of how the world *should* work.

No. I am not explaining how the world *should* work. I am explaining the basic economics of how the world *does* work. You can ignore those economic forces, but you will soon discover that relying on business models that go against these economic forces will put you into serious trouble.

You say elsewhere that I can use this kind (zero-duplication-cost) content to increase the value of other scarce goods. Well, that might work for musicians who want give away music (zero-duplication-cost) to sell concert tickets (a scarce good), but you can't perform software.

"Performance" is merely one scarce product. With software there are many others. You point to Red Hat, but an even better example is IBM. IBM makes a ton of money off of software. It has contributed greatly to Linux, but it's business model is based on services around Linux. It has realized that contributing to and giving away the software helps the rest of its business.

Google gives away its software for free, but its model is built on advertising, and it's turned out to be rather profitable, don't you think? The scarce good there is people's attention, which Google has monetized rather nicely.

We do a fair bit of software development here, but we do it to power our services.

Again, there are tons of examples of ways in which companies developing software make money.

And, I'd also argue that your initial point is even sillier. There are very, very few software developers who make a royalty on each of their products. Most are paid a flat salary by their employer.

Again, as a content creator you can choose to ignore these things and try to focus on a business model that relies on copyright or patent -- but when your competitors work out business models that do not, it will be much tougher for you to compete. That's your choice, of course, but it doesn't seem like a wise choice.

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I think you're vastly overestimating the value of your one-size-fits-all philosophy. Most of the service-based software models seem to work when you're selling your products to (cash-rich, risk-adverse) companies and you're selling a complex product. My philosophy of software development is making everything as easy and flawless for the customer as possible. Guess what? That undermines the "services" model of software development. (In fact, one company I worked for did a lot of services-based pricing - at $200 an hour - and there was an obvious disapproval of making software the right way: easy-to-use with complexities taken care of my the software instead of pushing them onto the user.)

Google gives away its software for free, but its model is built on advertising, and it's turned out to be rather profitable, don't you think? The scarce good there is people's attention, which Google has monetized rather nicely.

And you need to understand the ecosystem of business models that exist in the real world. You're like a person who says, "the bison did quite well in the great plains - thus, we should cut down the rainforests because other animals manage to survive in the plains." You conveniently ignore the fact that rainforests contain far more biodiversity than the plains. The same can be said of software: the majority of software companies make money by selling software. Your services-based or advertising-based software ideas simply aren't going to work. Fundamentally, this is a problem caused by immoral or delusional people who believe digital = free.

How about this: I use a piece of software for 3D design. It's a very complex piece of software and it retails for $3000. It costs that much for a variety of reasons - partially being the specialization of the software (meaning fewer users). Are they going to support themselves with advertising? How many ads would they have to show each user to recoup their costs? I have never had to use their technical support. Your one-size-fits-all philosophy simply can't work for most of the software ecosystem out there. Yet, people obviously want those products -- proven by the fact that they're being supported by people paying for it. The "there should be no IP" approach undermines these businesses, will ultimately undermine those parts of the software world, and everyone will be worse-off because of it. Your one-size-fits-all philosophy simply isn't going to work for most products.

Again, there are tons of examples of ways in which companies developing software make money.

I don't care if you can say "companies x,y, and z do it". The problem is this: most products can't do it. What I want is this: randomly pick 1000 products and ask "what percentage of these products can (1) be switched to your one-size-fits-all model and (2) manage to maintain anything close to their original profitability?" My answer is: not many. Additionally, the software-services model undermines making products correctly: easy-to-use, hiding complexities from the user, working flawlessly. Ideal software would not need any services or support. The software-support model requires that these problems always exist.

And, I'd also argue that your initial point is even sillier. There are very, very few software developers who make a royalty on each of their products. Most are paid a flat salary by their employer.

Again, as a content creator you can choose to ignore these things and try to focus on a business model that relies on copyright or patent -- but when your competitors work out business models that do not, it will be much tougher for you to compete. That's your choice, of course, but it doesn't seem like a wise choice.

Uh - I hate when the anti-copyright crowd suddenly abandons one argument to make a different argument. The very idea that IP should be public-domain is a VERY different point than saying that freeloaders (who should be condemned for their actions) are going to undermine the industry. Pick a point and stick with it. If you want to argue that all IP should be public-domain, then argue it. If you want to argue that piracy is evil, but we need to come up with innovative ways of dealing with it because it's undermining the industry, then argue that point. I don't feel like running around trying to whack down your different arguments like a game of whack-a-mole.

Re: Re: Re: Re: Re: Re: Imaginary Property

Weird. I'm not the one with the one-size-fits-all philosophy here. I'm the one saying that there are hundreds, if not thousands of business models that will make people better off if they let the free market decide, rather than relying on the "one-size-fits-all" strategy of using a gov't granted monopoly.

My philosophy of software development is making everything as easy and flawless for the customer as possible.

Indeed. I have nothing against that.

That undermines the "services" model of software development. (In fact, one company I worked for did a lot of services-based pricing - at $200 an hour - and there was an obvious disapproval of making software the right way: easy-to-use with complexities taken care of my the software instead of pushing them onto the user.)

Well, then you worked for a dumb company that will quickly get destroyed by its competitors. That doesn't prove your point. There are lots of dumb companies out there. Let the market sort out that problem and they'll learn that they need to make software work better.

And you need to understand the ecosystem of business models that exist in the real world.

You do realize that I work with many companies helping them with their business models, right? I'm pretty familiar with the ecosystem of business models out there. I'm the one saying that they should look at the alternatives beyond your "one-size-fits-all-must-use-copyright" model. Explaining to them how some of those many other models can do much more.

The same can be said of software: the majority of software companies make money by selling software.

But, even if you were right, it wouldn't matter. The economic forces at play aren't hard to read. More and more companies are realizing that they're better off not selling software. Fewer and fewer software companies make a living selling software these days. The number is shrinking pretty quickly. It doesn't take a crystal ball to recognize which way the wind blows.

I'm not talking about how I think things should work. I'm talking about the economic forces concerning how it will work. As more and more companies adopt these business models, companies that still try to charge will find it more and more difficult.

But it is working. Widely. In fact, more companies are making use of it than you would imagine. And you are wrong to say it's a "services-based" or "advertising-based" model. Those are merely two examples of the hundreds of business models that involve using the infinite good to make the scarce good more valuable.

Fundamentally, this is a problem caused by immoral or delusional people who believe digital = free.

My goodness. What does morality have to do with a simple economic equation? Infinite means a marginal cost of zero. Price gets driven to marginal cost. This is econ 101. It's got nothing to do with morality, it has to do with basic economics. You can deny it all you want. That's fine. It won't change what happens. It doesn't matter what I think *should* happen or what I *want* to happen. It's what is happening.

How about this: I use a piece of software for 3D design. It's a very complex piece of software and it retails for $3000. It costs that much for a variety of reasons - partially being the specialization of the software (meaning fewer users). Are they going to support themselves with advertising?

I never said they would support themselves with advertising. I said (quite clearly, I believe) that they can use the infinite good to make some other scarce good more valuable. I don't know that space well enough off hand, but I would imagine that with such a specialized software there would be strong demand for related services, having to do with manufacturing or rapid prototyping. I could imagine probably a dozen business models where it would make sense for a rapid prototyping firm to give away such software to increase demand for its business. Or for a construction firm to give such software to architects to increase demand for its business.

Your one-size-fits-all philosophy simply can't work for most of the software ecosystem out there.

Again, I'm not the one with the one-size-fits-all philosophy. I'm saying that with demand, as there is, there are business models that make sense. You're the one insisting that it has to be via copyright.

Yet, people obviously want those products -- proven by the fact that they're being supported by people paying for it. The "there should be no IP" approach undermines these businesses, will ultimately undermine those parts of the software world, and everyone will be worse-off because of it.

If there is demand, there is a business model for it. We've seen it time and time again. I've yet to see an example of a digital product that shrinks a market when it goes free. I've only seen markets get bigger, because the free resource expands a market greatly and opens up many more opportunities to profit.

I don't care if you can say "companies x,y, and z do it". The problem is this: most products can't do it.

I've yet to come across a business that couldn't adopt the model. I've also yet to come across a business that didn't adopt it and find it expanded their business.

You have yet to give an example that shows the model doesn't work. I've given many to show why it would, plus pointers to economic evidence as to how it works on a larger scale, plus a rather detailed explanation of why it works. I'm curious as to why you still insist it won't work.

What I want is this: randomly pick 1000 products and ask "what percentage of these products can (1) be switched to your one-size-fits-all model and (2) manage to maintain anything close to their original profitability?"

Again, it's not a one-size-fits-all-model. Quite the opposite. It's opening up the free market to adopt any one of thousands of business models. I'm not defining the business model -- just explaining how they can take advantage of their own unique situation. It's different for nearly every company.

Additionally, the software-services model undermines making products correctly: easy-to-use, hiding complexities from the user, working flawlessly. Ideal software would not need any services or support. The software-support model requires that these problems always exist.

Again, the services model is merely one model of many. Why you can't seem to get this through your head, I do not know. In fact, I gave you a bunch of different examples. Google is not a services model. My company is not a services or advertising model. Why do you insist I say a 1 size fits all when clearly I have not.

The only one who has suggested a one-sized fits all model is the person arguing that software companies need to have the price of software artificially inflated by a gov't monopoly.

Not at all. Most software developers do not work on products that are sold. They work on products used to make their own companies more efficient. That, by itself, is yet another model for software production. It's not irrelevant at all. It's showing how software production occurs because the software is useful, either for the company itself or as a way to make money. The point is that if the software is useful to someone there are business models to get it made.

The fact that you think it's irrelevant that most software developers don't get a royalty for every software sold shows a serious disconnect in your understanding about copyright. You were just insisting that copyright was necessary to get software made. Yet, my company produces a fair amount of software and we don't worry about the copyright, and my developers are well paid.

The very idea that IP should be public-domain is a VERY different point than saying that freeloaders (who should be condemned for their actions) are going to undermine the industry.

Check your reading comp skills, because that's not what I said. I didn't say that freeloaders were going to undermine the industry -- I said that other software developers will recognize that they can be better off by ignoring copyright and adopting other models. In that case, because those developers realize this and adopt those models, the companies that choose not to will be in trouble.

Re: Re: Imaginary Property

you spend your day out in the forest hunting animals. You come back to your tribe and discover that another man has spent the entire day building a fire by rubbing sticks together. He is tired from the work, and his hands are bruised. He says, "You can use my fire if I can have some of your meat". You reply, "I can take your fire without reducing your portion of it." then you take a stick, light it on his fire, and use it to cook your meat, sharing none of your meat with anyone.

This too is an incorrect analogy. In all the situations I have seen discussed, the person with the fire (creator or inventor) has already let the hunter use it (given a copy). What copyright seeks to block is analogous to preventing that hunter from then voluntarily lighting another hunter's fire from his fire. I have not seen discussion of forcing creators and inventors into giving out that first copy when they don't want to.

Re: Re: Re: Imaginary Property

What copyright seeks to block is analogous to preventing that hunter from then voluntarily lighting another hunter's fire from his fire. I have not seen discussion of forcing creators and inventors into giving out that first copy when they don't want to.

We (the creators) compensate for this by charging very, very little for our work. We try to make it up on volume of sales. This means we can't have people undermining our sales by giving out copies everywhere. In fact, as a software developer, my users get a product that costs a tiny, tiny fraction of the amount of work I put into it. Considering that I work thousands of hours on a product, and customers can buy it for the low-double digits in dollars, means that each customer pays less than one penny for each hour that I work. That's the trade off: you get my product for super-super cheap, and I don't have to compete with people who want to give-away my product to thousands of people over the internet. I think that's a pretty good deal, apparently it's not enough for some people, though.

Re: Re: Imaginary Property

You spend your day out in the forest hunting animals. You come back to your tribe and discover that another man has spent the entire day building a fire by rubbing sticks together. He is tired from the work, and his hands are bruised. He says, "You can use my fire if I can have some of your meat but, you are not allowed to light anyone else's fire with it I alone am reserved that privilege and Brutus will hit anyone on the head that uses an unauthorized lighting of my fire". You reply, "I can take your fire from Ogg who already gave you meat without reducing your portion of it." then you take a stick, light it on Ogg's fire, and use it to cook your meat, sharing none of your meat with anyone. Then you expect him not to be angry with you for using an unauthorized fire lighting, and you question how he could think that you haven't done anything wrong.

Data Monopoly

How about calling it a Data Monopoly? Because it's all just data to the computers which are copying it. And the government imposes a monopoly to the creator (or the purchaser of the rights) for a "limited" time.

We can explain that the duration of the monopoly is supposed to be limited, but in fact is so long that it might as well be infinite. What good is a monopoly on consumer entertainment which lasts longer than the lifetime of the average consumer?

Well said

I have been in the computer software business for effectively my entire life, and intellectual property is close to my heart (so to say), both from the perspective of ownership and freedom of it. Having a level playing field for everyone, including small companies and individuals is very important in order to maintain the steady stream of innovations that we take for granted, and to avoid the emergence of another Bell company that stifles an entire industry for generations.

For example, there would be no PC industry if the bar for "ownership" of "ideas" is too high. If the "idea" behind the PC, i.e. the particular combination of features had somehow been considered intellectual property, then it would never have been "cloned" and the IBM PC would just be a distant memory, sort of like the PS/2 is today.

Similarly if the particular combination of features behind the CP/M operating system had been somehow protected, then we might still be using some sort of CP/M derivative for an OS on our Apple XII's, for which a small Seattle-based software company would offer what they call Microsoft Basic.

It's ironic that the company that arguably benefited most from the relative freedom of ideas and innovations in the digital age seems to be so keen to slam the door shut behind itself. Perhaps it's a reflection of them knowing what their success was based on, and their desire to avoid someone else doing the same to them.

Re: Re: Well said

Re: Re: Re: Well said

If little companies can't protect their IP, their source of income (and survival) is seriously undercut. (Duh)

Again, if you look at the evidence this is false. It is based on the incorrect assumption that the ONLY way to make money is through the IP rights. Instead, if you recognize that the infinite goods (the content or ideas) can be used to *increase* the value of scarce goods, you can actually make much more income by *choosing* to ignore the intellectual property rights, and use the content itself as a (free) promotional good.

Re: Re: Well said -- Open source Needs IP

Free software is built on licenses. It uses the current rights regime to accomplish something different, but it is very reliant on an IP regime being in place. GPL and other reciprocal licenses enforce sharing, which is critical to promoting progress. This contrasts with what we would have with no intellectual property restrictions, like a BSD or MIT licensed works. With no restrictions, there is nothing to inhibit forking.

Just compare the rate of progress of GPL operating systems such as Linux, and the BSD's. Linux accretes more features and more developers more quickly because contributors can have confidence that no-one is going to take the code closed source, and then compete against them. with BSD, your contributor this week, can close access to his improvements and compete with you the next week, while still using your code as you improve it! GPL, a restrictive license, makes that kind of behaviour impossible.

Maybe it's a mistake.

Maybe it is a mistake to try and give the concept of "Ideas" any other name. Like you say Copyright and Patents are different things. Copyright is pretty self explanatory, the right to control copying. Patents are the time limited monopoly over the production of some thing. The only thing they have in common is that before they exist in reality they exist in some ones mind. I think that trying to give the term "ideas" names like Intellectual Property or any of the others is playing by the rules of those who's intent is to bilk us of all they can. In a sense by giving it a special title you are conceding far more than Thomas Jefferson and James Madison seem to have.

And while I'm on the subject... The constitution says "to promote science and the USEFUL arts...." I challenge the notion that pop music is useful and even deserves protection. I myself enjoy playing music, but I am not under the delusion that I have a right to make my living that way.

Re: Re: Maybe it's a mistake.

I think that it has been clearly demonstrated that diverse and new music is created regardless the existence of copyright. It is my opinion that there has been a serious decline in "diverse and new" music, and I suspect that the state of current copyright laws may be one of the primary factors. I also believe that the majority of professional are musicians harmed by copyright more than they are helped. I think this is because the side of the issue we see the most is the one put forth by Hollywood. Most professional musicians are NOT rock stars, and not many people know their names.

Your blog post

Quote: "If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears"

This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can't just pick them up anywhere. When fertile ground is found (the mind of the creator) and an idea is uncovered, then like a gem, it can be shown to many people -- an unlimited number, really -- and they may benefit from, and enjoy the qualities of that gem, while the gem still remains the *property* of the finder.

If we wish finders of gems to show them to us and not simply keep them to themselves, then we must, as a society, agree that when shown the gem, we will not take it. For yes, *that* gem, once taken, can be enjoyed by everyone, but the *next* gem found will not be so generously displayed.

Instead, the bitter experience of having had one's *property* taken (with whatever set of excuses) will have taught the finder not to allow *that* to happen again.

In this way, the fertile ground, having been demeaned in value by thieves, becomes non-fertile, non-producing ground from the perspective of the public.

This is why we should (a) respect intellectual property, which is to say, not take it without satisfactory recompense to the author, and (b) ensure that said recompense is sufficient as to encourage the finder of that gem (the author, artist, etc.) to go back to the mine that is exclusively theirs and in which no one else can search (their own mind) and excavate for additional gems.

The value of IP to the producer is in the respect and compensation given the producer: It is their property, unquestionably, until or unless we can convince them that in relinquishing it to us to enjoy the fruits of, we will compensate them in such a manner as to ensure that they feel the process was worth doing.

In compensating for this property, we are saying, please, go back to the source and uncover more of this worthwhile matter. Contrariwise, when we take it and walk away, muttering contentiously about how "information wants to be free", we are telling the producer that said matter has no value *for them*, and the odds of them doing the *work* of producing more for us drop precipitously.

It is in the continuous encouragement of production of such matters that benefits to the arts and sciences accrue; I would say, having read all three of your blog posts, that it was clear that Jefferson, for instance, understood this perfectly, and *that* is why the issue is enshrined in the constitution. It is not at all clear that you understand it.

Re: Your blog post

> This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can't just pick them up anywhere.

Odd, this place is full of them. For free. In fact, after seeing some of the things that get patented, I have to say that most ideas aren't original. After all, words themselves contain ideas, and very few things actually require new words to express them. Thus, all of our ideas are built upon preexisting ones.

You sound like someone trying to convince us that dousing unlicensed candles is the best way to make the world a brighter place...

Re: Your blog post

This premise is completely wrong. Ideas *are* scarce, in that like rubies or diamonds, you can't just pick them up anywhere.

You are confused. Ideas, once created, are not scarce. They are infinitely available. I find it amusing (and troublesome, actually) that you later claim that Jefferson agrees with you when clearly he does not. I quote:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

If we wish finders of gems to show them to us and not simply keep them to themselves, then we must, as a society, agree that when shown the gem, we will not take it.

No one is "taking" anything. They are reproducing it, spreading it, making it better, making it more valuable and expanding the overall welfare. Taking implies that someone has lost it. That is not true with an idea. You are incorrect.

For yes, *that* gem, once taken, can be enjoyed by everyone, but the *next* gem found will not be so generously displayed.

This, too, is incorrect. Please look at the research of Eric Schiff. Or Petra Moser. Or David Levine. Or Michele Boldrin. Or many, many others. They all found the same thing. A lack of intellectual property law does not stifle new creations. In fact, it often increases the pace of them, because the innovations are designed to create products in the market that can be sold, not for the sake of hoarding intellectual property.

Factually, you are wrong.

Instead, the bitter experience of having had one's *property* taken (with whatever set of excuses) will have taught the finder not to allow *that* to happen again.

It is not property, and it is not taken. You are incorrect again. Instead, it is an idea that is shared and spread and made better.

If you understand the basic economics, then you will recognize that the creator of that idea is likely to be BETTER OFF the more the idea is spread and the more it is improved on. If you understand the economics you don't, as the "finder" work to prevent it from happening again -- you TRY to make it happen again and again and again and again, because you recognize that it boosts your reputation and in doing so boosts your ability to influence, to change and to make money as well.

In this way, the fertile ground, having been demeaned in value by thieves, becomes non-fertile, non-producing ground from the perspective of the public.

Quite the opposite. Historically, the evidence shows otherwise. The more an idea is shared and spread and refined, the MORE valuable, the MORE fertile, the MORE productive it becomes. It is in the limiting, the hindering, the hiding of ideas that shrinks a market.

This is why we should (a) respect intellectual property, which is to say, not take it without satisfactory recompense to the author, and (b) ensure that said recompense is sufficient as to encourage the finder of that gem (the author, artist, etc.) to go back to the mine that is exclusively theirs and in which no one else can search (their own mind) and excavate for additional gems.

This is based on the extremely faulty notion that the REWARD for intellectual endeavors comes in the direct sale of the output of those intellectual endeavors. That is simply not so. If that "said recompense" is not necessary and hinders further innovations by creating a monopoly, that does much more damage to innovation and does much more damage to the market for the individual's work.

For a perfect example, look no further than Giuseppe Verdi who lived in a time both with and without copyright. When there was no copyright, he wrote much, much more. Why? Because to make a living he had to continue to produce. Yet once copyright was in place, he could rest on his laurels and sit back and collect royalties. This is the opposite of your prediction. Yet, time and time again we see the same thing. Again, look at the research I have pointed you to and you will find that your assumptions are incorrect and have been proven incorrect time and time again.

The value of IP to the producer is in the respect and compensation given the producer: It is their property, unquestionably, until or unless we can convince them that in relinquishing it to us to enjoy the fruits of, we will compensate them in such a manner as to ensure that they feel the process was worth doing.

It is not property. Again, please reread the Jefferson quote above.

In compensating for this property, we are saying, please, go back to the source and uncover more of this worthwhile matter.

Again, the false assumption that the only way to make money is in direct payment for the idea (not property). This is false. It has always been false.

Contrariwise, when we take it and walk away, muttering contentiously about how "information wants to be free", we are telling the producer that said matter has no value *for them*, and the odds of them doing the *work* of producing more for us drop precipitously.

Again, this is false. Look at the research of Eric Schiff.

He looked at countries that got rid of their patent system, and found it INCREASED innovation because there was MORE competition in the marketplace. That is companies focused on making more goods for the market, rather than focusing just on patenting things and not having to compete in the market.

Look at the history of the steam engine -- which only grew the market AFTER the patents expired, because James Watt made it prohibitively expensive to use, and no innovation could occur until the patents were gone.

Look at the research of Petra Moser, who found that countries without patent systems innovate just as much, if not more, than those with patent systems.

It is in the continuous encouragement of production of such matters that benefits to the arts and sciences accrue; I would say, having read all three of your blog posts, that it was clear that Jefferson, for instance, understood this perfectly, and *that* is why the issue is enshrined in the constitution. It is not at all clear that you understand it.

I would ask that you go back and read more closely. Jefferson was quite clear that these were not property rights. They were monopolies that should only be granted in the rarest of circumstances.

I am afraid that you believe some very faulty things -- that are certainly believed by many -- but which have no basis in reality. The evidence, basic economics and a little common sense all show that you are incorrect.

Re: Re: Your blog post

Wow, such a loooooooooooong piece of nonsensical shit from Mikey in response to the only reasonable comment on this thread
Mikey has a real talent for demagogy
Must make a good politician one day... maybe a senator... or even, God forbid, a prez

Re: Re: Your blog post

Mike, you are right; ideas are not at all scarce. What Ben should have referenced is worthwhile ideas. You know, the kind you want to copy.

I disagree that taking implies loss, but it's a fair interpretation. How about receiving? The fact is that whether the originator loses the product itself or not, the receiver receives it.

The reason all of this is being debated is because people want to believe that it's OK to 'receive' the fruit of someone else's labor without regard for the wishes of the originator.

It seems to me that someone who has an idea and sets it into motion, creating something new, should be able to determine what happens with it. That's the notion enshrined in the Constitution, and for good reason. If the creator decides it should be shared at large with at no cost to receivers, he should be able to do that (see FOSS et al.) If the creator wants to do otherwise with what he or she has created, that should be OK too. If he wants to offer it for recompense, he should be able to do that. Even if all the convoluted hypotheses expounded here and elsewhere about how to profit were correct, that choice should belong to the creator. Even if he could have made more money with a different distribution model, or helped more people, or gotten more recognition, or whatever. What you people refuse to acknowledge is the value of the act of creation, and the consequent fact of ownership. You don't have to call it property, or believe in it, but it exists.

If created things have no more value than what you ascribe to them, why not make your own music/video/monologue/lip snaffler and give it away to enhance the quality and value of other people's lives? If I come up with a cure for cancer, a lot of people might want it - but I don't owe it to them. It's just another idea; let them have their own. After all, ideas are not at all scarce.

For the record:

1.) I could no more come up with a cure for cancer than I could leap to the moon via my own leg power.

2.) I firmly believe that if I could and did come up with a cure for cancer, I would share it freely.

Re: Re: Re: Your blog post

Mike, you are right; ideas are not at all scarce. What Ben should have referenced is worthwhile ideas. You know, the kind you want to copy.

You mean scarce with regards to other ideas. Any idea itself is not scarce. I'm talking about the fundamental economic properties. It is non-rivalrous and non-excludable and cannot be used up. That's factual. It's not open to debate.

The reason all of this is being debated is because people want to believe that it's OK to 'receive' the fruit of someone else's labor without regard for the wishes of the originator.

There are two problems with this statement. First, I have made it clear that I am speaking in regards to the content creators themselves -- and explaining how this can be used to their benefit. I am not saying this justifies the activities of those who infringe. I'm saying that smart creators would recognize that they should encourage infringement.

But the second problem is a bigger problem. You seem to be suggesting that the content creator determines the market. Unfortunately that is incorrect. The market sets the price and the market price will be the marginal cost. I could go out tomorrow and try to sell the chair I built for $25,000, but no one will buy it. The market will tell me that's the wrong price. What we're saying here is that the market is increasingly pricing content accurately at $0, and those who learn to embrace that will do better because of it.

Think of it this way. If every other creator in the world recognizes how to make money by giving away the content, and you are the lone holdout, how well do you think you'll be able to sell your content?

It seems to me that someone who has an idea and sets it into motion, creating something new, should be able to determine what happens with it.

No. They can determine how they *want* to sell it, but the market will determine what happens with it -- just as the market will determine what happens to my chair and what's done with that chair after I sell it.

If the creator wants to do otherwise with what he or she has created, that should be OK too. If he wants to offer it for recompense, he should be able to do that.

Indeed, but if the market tells you that the proper price is $0, then what?

What you people refuse to acknowledge is the value of the act of creation, and the consequent fact of ownership.

It is not ownership. You cannot "own" an idea.

If I come up with a cure for cancer, a lot of people might want it - but I don't owe it to them.

If you could come up with a cure for cancer, you could sell it to an insurance company who would want to make it free -- because it would *save them* money in the long term... So you could give it away in a manner that would make you money, would make insurance companies money and would make patients happier and live longer for free. Everyone wins.

Re: Your blog post

Good post, Ben. I often skip these discussions on IP because a mob of freeloaders always show up to legitimize their freeloading. It's extremely irritating to see these people everywhere, and it actually makes me cynical about humanity in general.

Re: Re: Your blog post

"I often skip these discussions on IP because a mob of freeloaders always show up to legitimize their freeloading"

It's obvious you've been skipping them, because you seem to be blissfully ignorant on the topic. Continuing to assume that anyone who disagrees with your opinion just wants "something for nothing" is ridiculous.

Re: Re: Re: Your blog post

It's obvious you've been skipping them, because you seem to be blissfully ignorant on the topic. Continuing to assume that anyone who disagrees with your opinion just wants "something for nothing" is ridiculous.

No, your right - there's also a bunch of dreamers who think their business model is the best thing since sliced bread and that it will work for everyone.

Re: Re: Re: Re: Your blog post

"there's also a bunch of dreamers who think their business model is the best thing since sliced bread and that it will work for everyone."

There's plenty of business models, and I have yet to see anyone who has seriously suggested a 'one size fits all' model. There are several different business models that incorporate infinite goods.

Basic economics state that if there is an unlimited supply of a product, it will drive the price down to zero. Accusing those that understand that principle of being "freeloaders" or "wanting something for nothing" shows either a lack of comprehension or a willful rejection of reality.

Re: Re: Your blog post

Good post, Ben. I often skip these discussions on IP because a mob of freeloaders always show up to legitimize their freeloading. It's extremely irritating to see these people everywhere, and it actually makes me cynical about humanity in general.

I have made myself quite clear on this subject, and it bothers me that you would say the above statement because:

I do not support infringement. My point is merely to explain and show by example to *producers* of content that there are business models by which they are *better off* that involve actively ignoring the intellectual property rights they are granted by the gov't. My statements are entirely from the position of advising the content creator. It is not to justify those who infringe against the wishes of a content creator.

GGTM

My preference is Government-Granted Temporary Monopoly, which while having an unfortunately unpronouncable abbreviation (other than just spelling out the letters) of GGTM, seems to actually be fairly descriptive.

Fallacy

I just read a few lines and found a gross fallacy:
> the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense.

Ownership of a digital or "intellectual" object might not be exclusive, but ownership of the rights to control it certainly is. So there IS a scarce resource: the right to control the creation. It is exclusive and scarce. The song might not be, but nobody claims a song is property of someone, but the rights to the creation are.

Re: Fallacy

Ownership of a digital or "intellectual" object might not be exclusive, but ownership of the rights to control it certainly is. So there IS a scarce resource: the right to control the creation. It is exclusive and scarce. The song might not be, but nobody claims a song is property of someone, but the rights to the creation are.

I'm afraid the fallacy is on your side. The scarcity that you talk of is an artificial scarcity. It's an artificial barrier to growth, and what's happening is that that artificial barrier has broken down due to technology.

But the funny thing is, those who learn to understand and embrace the economics around it find that they're BETTER OFF when they ignore this artificial scarcity and use the abundance to their advantage.

Private Information

Better to call it PI - 'Private Information" - than IP. After all, what we're really talking about is information that the originator wants to keep private rather than having it made public.

In reality, we need a rewrite on our patent laws. It should be required that source code be produced to gain a patent on software. After all, we require a sample of a novel or other written item for copyright; why should software (which has a written component) be any different? The idea that making a few sketches and a couple of paragraphs of description is precise enough to define a software patent is ridiculous.

It would seem to me that the user interface could be patented, but the code should be copyrighted. Once the code is copyrighted rather than patented, the copyright owner gets to carry forward the copyright for a limited number of years, just as in current copyright law. After that, the rights revert to the public domain. A system like this would also drive innovation, rather than letting companies lock their codebase forever. In order to get a new copyright they would have to come up with new techniques.

Having the code in question on file would also make it harder to use FUD to threaten other users' code (i.e. - Microsoft's claims against Linux), since it would be a simple matter to compare the code from both sources.

Renaming IP

In If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?, Techdirt writer Mike Masnick discusses various proposed replacements for the misleading term "intellectual property." Contenders include "intellectual monopoly," "intellectual privilege," "imaginary property," and "None of the Above." There are problems with each of these. Masnick concludes: "In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property."

I tend to agree. What IP law does it give legal (positive) rights to people to try to protect or stimulate innovation or creation. It gives them rights in innovations, creations, recipes, or patterns. If one keeps in mind the distinction between natural and positive rights, then it's easy to see that laws do create legal rights, and of course all rights are, in the end, types of property rights. So IP laws do create (positive, or legal) (property) rights. And they do have to do with products of the mind, or intellect. So "intellectual property" rights seems fine to me, if one realizes that there is a difference between positive right (positive law) and natural rights (natural law).

Still, some ideas came to me (and I own them, heh heh!). It would be nice to take the word "property" out, and just refer to the rights conveyed. Copyright gives authors of original works certain (legal) rights to their "works" or creations. Books, songs, paintings are regarded as "original works of authorship". There is an element of "creativity" to these things. Patents give certain (legal) rights to inventors of practical inventions--methods or processes for doing things (recipes) or arrangements of matter (designs). What do inventions and "works of authorship" have in common? One is practical, aimed at some gizmo or method that produces a practical result (a machine or process). Another is aimed at "creative" things--paintings, novels, songs. J. Neil Schulman, in his neo-Randian/Galambosian [I don't know if he would accept this label] IP theory groups them all under the term "logorights," where the "logo" refers to a "pattern". I think this is a pretty good description: a recipe is a type of pattern; as is the design for a practical machine or device. Likewise, original works like paintings, music, etc., are obviously representable digitally, as patterns. Copyright and patent law clearly grant rights ... to whom? To creators--inventors and authors--of "logos"--patterns, such as machine designs, process steps, or the patterns that represent the song, painting, etc.

So as much as I disagree with Schulman's justification for "logorights," the term is a pretty good one--except that it is so arcane. A variation on it using more standard terms might be better: pattern rights, or perhaps innovation rights.

Re: Renaming IP

You make it sound like the government can create a right to anything and it automatically becomes property?

This seems quite wrong, especially when it ends up creating legal fiction. I'm sure you must realize the harm when laws are unrealistic and overly broad, when laws encourage competitors to seek redress through the government instead of through stronger and better competition, and when 'property' exists which cannot be defended?

After all, how DOES one defend an idea, save by never revealing it? And even then, the idea becomes useless because it is never used, and one STILL can't keep someone else from having the same idea!

So no matter how much one might be inclined to assign owners to ideas with the hope that more would care for them, what use is it when this is not just impossible, but it also invites government regulation?

A Flawed Discussion

The various comments make mostly reasonable points about why copyrighted information is or is not property (most of which show an understanding of the nature of property, and of information, and how they differ), and they suggest interesting names for copyrighted information, supposedly as alternatives to "intellectual property". But the very premise of the discussion is fatally flawed. It is based on a misunderstanding about what "intellectual property" means. A copyrighted work is NOT intellectual property. Only people who know nothing about the law, or who know better but are deliberately propagandizing (as the RIAA does), use "intellectual property" to refer to a work, or piece of information. So what is intellectual property? It is the copyright or patent, not the information or invention copyrighted or patented. Copyrights and patents do have the characteristics of property. If I own a patent, for example, only I can exercise the rights associated with it. I can sell it. You might in theory steal it from me, if you could infiltrate the USPTO and falsify its records. You can trespass on it by violating it. It may be property that is created by or arises due to an artificial act of the state. But it is definitely property.

Re: A Flawed Discussion

But the very premise of the discussion is fatally flawed. It is based on a misunderstanding about what "intellectual property" means. A copyrighted work is NOT intellectual property. Only people who know nothing about the law, or who know better but are deliberately propagandizing (as the RIAA does), use "intellectual property" to refer to a work, or piece of information. So what is intellectual property? It is the copyright or patent, not the information or invention copyrighted or patented.

Your charge is incorrect. Look at the last post in the series. I'm quite clear on what count as IP, and I believe I'm also quite clear on why it's different than property.

Copyrights and patents do have the characteristics of property. If I own a patent, for example, only I can exercise the rights associated with it. I can sell it. You might in theory steal it from me, if you could infiltrate the USPTO and falsify its records. You can trespass on it by violating it. It may be property that is created by or arises due to an artificial act of the state. But it is definitely property.

This is entirely incorrect. It has *some* features that are similar to property, but many that are not. Specifically, the very fact that it cannot be "stolen" (despite your false claim) only infringed. The fact that it only lasts for a limited time before it goes into the public domain. The fact that no property taxes are paid on it. Etc. Etc. Etc.

The whole problem is that it has some characteristics that are property-like, but many many that are not. It's those differences that bring up the issues here, and calling it the same as property distorts the conversation in dangerous ways.

What is the problem with IP or ????

What is the problem with IP or ????

I am a patent attorney specializing in small entity IP (read, poor and abused, but happy). I do so because I think that is what IP is supposed to be about. If I see that I can invent something, and it will cost X time and Y dollars, and I can expect that someone with more assets will steal it as soon as it is developed, I won't develop the idea into an invention - DUH!
But our present law caters to the rich, because they provide CAMPAIGN funds! So, enact campaign finance reform and good IP laws will follow, until then, the system will be broken (as it is, now).

Re: What is the problem with IP or ????

What do you mean by "IP"? That's the heart of the problem.

Copyrights: I don't think I can even list all the problems. They outlive the authors. You get paid almost in perpetuity for something done only once. The rights are too broad (my TV can be too big per 17 USC 110???) and people are working to stifle fair use. It's difficult to remix things, and the minute somebody makes something valuable out of something that was utterly ignored prior to that, there's a money grab. There are crazy, draconian laws being drafted to enforce them online which aren't really enforceable, but which strip everyone of privacy even in the attempt. There are programs to try and enforce them, but they take over your PC and stop you from doing even legal things. The DMCA makes it too easy for people to take down any web page they don't like, put-back notices are hard to draft and not always honored, and you can flat-out lie on them and not get in trouble in any case I've ever heard about.

Then you have unconstitutionally excessive statutory damages (see BMW v. Gore), not to mention all the things the RIAA is trying to do, both in asking for new laws and persecuting people with no computer. I realize that that last thing is more of a problem with the plaintiffs than the law, but please read http://recordingindustryvspeople.blogspot.com/ to see what a fellow lawyer thinks of what they're doing and how they're trying to make sure that people have little or no opportunity to defend themselves in court. Plaintiffs like them cause most of the ire towards IP that you find online.

Need I go on?

Trademarks: On the face of it, they're okay. Until some idiot gets a generic trademark, or trademarks some trendy new term, and tries to make everyone else stop using it. I'm surprised someone hasn't trademarked "Imaginary Property" and tried to go after me, except that I'm reasonably anonymous, barring a few subpoenas. Then there are those who go after anyone complaining about them online (see all the [trademark]-sucks.com domains that had to go through expensive legal fights before they won) and the danger that the term "commercial" is rather all-encompassing. So if you had your whatever-sucks.com domain hosted somewhere free that puts ads on your page, you're hosed because what you're doing is "commercial" even though you're not making a dime off of it.

Statutory "super" trademarks are even worse: the Red Cross has asked video games to change their health-box symbols to green. Because, you know, we're really going to get confused some day on the battlefield as to whether that video-game ambulance is a protected non-combatant!

The Olympics, well, I dislike the whole affair. They're nothing but a giant, international commercial with drug tests thrown in. They're very protective of anything that looks remotely like any of their symbols, force people to change their clothes lest a camera see the logo of any company that didn't pay them enough. And then there are all the restrictions about what those participating can and cannot comment concerning what they saw.

Mind you, professional sports do this, too. The MLB and NFL have been ridiculously protective of their broadcasts and any "accounts or descriptions" of their games, even trying to copyright player stats which are NOT creative works per any definition I can make sense of. Hell, they went after someone for posting a video of their COPYRIGHT NOTICE on YouTube as a demonstration of overreaching copyright holders by a law professor for educational use! They wouldn't even apologize, they just kind of shut up after someone finally got enough attention to have their Counter-Notice actually get paid attention to.

Patents: Within limits, they could be reasonable, but we have lots of people patenting well-known (but unpatented) things everyone else thought were too obvious. And instead of being written in a way that's useful to other inventors, they're written to be useful in court. So they're total gibberish to someone trying to learn from an expired patent. Moreover, you DON'T want to look at patents, otherwise you get hit with 3x the damages if they can prove that you knew about their patent! In Australia, someone managed to patent _swinging sideways_. In the US, they patented PB&J sandwiches with no crust, where the jelly is in the middle and peanut butter is on both sides to hold it together. How many mothers made that for their kids? So why does Smuckers have the patent??

Software & Business Method patents are the worst, though. I have NEVER seen one that provided any useful code or anything I would ever be able to duplicate from the patent itself that wasn't trivially obvious. You have your one-click patent, patents for double-clicking (yes, seriously), and so many more I can't think of them all. Hell, IBM even patented patent-trolling! Talk about legal sarcasm. If you didn't already know, patent trolling is where you spin off some entity with no products that could be a target of counter-claims to sue someone. Novell did it to Microsoft once upon a time, as we learned from SCO v. IBM and the weird arrangements Novell had to control SCO. Of course, now SCO is being used as a proxy by Microsoft against Linux, so it's an odd reversal. They're not a true patent troll, though. SCO still sells products no one wants to use, but IBM dropped the patent counter-claims against them because they have no money and it wasn't worth it.

Then we have forum shopping, where so many lawsuits get filed in the Eastern District of Texas, a court with ONE judge who is known to favor patent holders ridiculously much, thanks to the first-to-file rule that applies to patent lawsuits. There's been some indication that the appeals court might think about putting a stop to this, but they're a bit late.

The GOOD stuff, by and large, wasn't ever patented! We have lots of computer science journals where people write this stuff for free, share this stuff for free, and help everyone make better use of their computers. The whole Open Source movement is a good example. True, the GPL relies on copyright, but RMS, the man who came up with the idea, has long maintained that if there were no copyright, the GPL would become unnecessary.

Ship Hulls & Semi-Conductor masks: At last, we have some reasonable laws. Mind you, the Asian fabs they have making use of those masks probably just ignore them (leading people to develop things like that EPIC chip-lock system), but I haven't heard of too many people abusing these rights, so they're the least problematic of the lot. But they're hardly the first thing anyone thinks of when they hear IP! Most hardly know these rights exist!

So that, my friend, is what's wrong with "IP" and that is why I don't believe in Imaginary Property. As a lawyer, I'm honestly surprised you aren't more aware of all the shenanigans going on. Except for one college course, my entire education in law (such as it is) has come from studying the reports of all the stunts people are pulling.

Re: Re: What is the problem with IP or ????

I agree with the over-reaching problems of IP. I think copyrights are ridiculously long (personally, I think the original 28-years was more than enough). But, you know what else? I don't support the destruction of copyrights, patents, and trademarks. You're essentially like a person who says that criminal trials have all kinds of things wrong with them and -- therefore -- we need to eliminate all criminal laws. Huh? Talk about over-reaching.

Re: Re: Re: What is the problem with IP or ????

You're creating a false slippery slope by saying that we have to legalize, say, theft to be morally consistent here. But that doesn't give a defense of the laws we have! It's easy to point to the harm caused by theft of real property: the person no longer has it! It's not so easy with IP, because as you see, we put up statutory damages so they don't even have to (because they cannot, by and large). If you say that they can, find me a real case (not a made up one) and please find an exact dollar amount, giving a full justification of it. There are plenty of them online, this shouldn't be that hard... assuming one can prove actual damages from infringement alone.

Many have pointed out that it's simply better for society as a whole if we change how we treat these things, so that people make money off of services, advertising and support instead of creating a legal fiction that attempts to make something scarce that isn't! Compare this to the laws against (real) theft, and you'll see that we're much better off as a whole WITH the law than without it. True, some people come out much better under current IP laws now, but the majority do not, and many people suffer from all the problems I listed in that litany.

Thus, the law needs to be rewritten to reflect reality. It doesn't matter if you don't want to. It doesn't matter if you don't like it. It doesn't matter what you or I think of it. Reality is reality, and no matter how we attempt to legislate the tides, we will find that they ignore us.

Thus, it makes more sense to accept reality than to rail against it. This is why I choose not to believe in a legal fiction and live in the real world. Thus my name.

Re: Re: Re: Re: What is the problem with IP or ???

You're creating a false slippery slope by saying that we have to legalize, say, theft to be morally consistent here.

What are you talking about? It was an analogy, not a slippery-slope argument. If I had saying destroying the Intellectual Property laws amounts to throwing out the baby with the bathwater, would you reply that you aren't going to throw out any actual babies?

If you say that they can, find me a real case (not a made up one) and please find an exact dollar amount, giving a full justification of it.

Yawn. I love how you add in words like "exact dollar amount" - because, if I can't give you an *exact* dollar amount, then it isn't theft?

Many have pointed out that it's simply better for society as a whole if we change how we treat these things

Well, there's a couple problems with that statement. The first, and most obvious, is that you're arguing that seizing people's property leads to benefits for the larger society. Uh, that doesn't mean it's right. If a bunch of poor people stole my car so that the six of them could drive back and forth to work everyday - arguably getting more use and value out of my car than I do, that doesn't mean it miraculously become right to steal my car. I'm drawn analogies between communism and the anti-copyright crowd before, and your statement makes it seem even more relevant. Our glorious society will be better off if we seize the assets of every farmer, factory owner, and creators -- that's the argument of the anti-copyright crowd and the communists. Guess what? It doesn't work. Communism has exactly the same economic problems as the anti-copyright philosophy, and both involve seizing the work of the creators.

Also, I do most definitely think creators have lost money due to copyright infringement. I remember reading about one case where a creator had either failed to copyright or failed to patent something (back in the early 1900s), a company came along, snatched it up, and started selling it. They made millions off of something they didn't create. Also, I remember one software programmer who has a company. His software has to be registered in order to play his game. He put some fake registration codes on warez sites (places that were pirating his software). Then he watched as people tried to use his codes. He watched their IP addresses, and whether those same IP addressses came back to buy legitimate registration codes from him. About 1/3rd of the pirates came back and bought a copy of the game. With his registration-code setup, it's not hard to setup little tests like that. Those tests can help figure out what fraction of pirates would actually buy a copy - which can be used to help figure out sales lost due to piracy. Of course, that percentage would very from product to product. The fact that I can't prove a hard-number for each product doesn't mean losses aren't happening.

so that people make money off of services, advertising and support instead of creating a legal fiction that attempts to make something scarce that isn't!

It's ridiculous to suggest that all products *can* be shifted to a advertising/support business model, and that they can make anything close to their existing profits. The fact that people are willing to pay for these things says that they are worth the money. I used to have ad-supported internet through Net-Zero. They stopped doing that because they weren't making a profit, and I switched to high-speed internet (and was happy to pay the money). You come along and suggest that everything can be ad or support based? Ridiculous.

Thus, it makes more sense to accept reality than to rail against it.

What are you arguing this "reality" is? That IP shouldn't exist, or that piracy will always be a problem? I'm not going to argue against you if you can't define what the problem is.

This is why I choose not to believe in a legal fiction and live in the real world.

(Roll eyes) People know full well what IP infringement is. In fact, I recently saw a story on slashdot - "Olympic Web Site Features Pirated Content". I thought it was funny that person after person recognized that what the Chinese did was a blatant rip-off and were viscerally angered by it. But, when it comes to pirating content off the internet, the Slashdot crowd is usually very pro-piracy. It's pretty ridiculous to say, "I know it's bad when the Chinese do it, but it's perfectly okay when I do it." It's obvious that "free stuff for me" influences their opinions on the matter. When they aren't profiting from it, they recognize that it's very wrong. How can you possibly rectify the fact that people recognize that IP theft is wrong (in the Chinese case), with eliminating the laws against it? You can't. You've chosen to live in the belief that IP isn't real. Sure, there are things that morally outrage us, but we don't legislate, but those cases tend to be very messy with no clear lines. Clear lines exist in the case of IP theft.

Re: Re: Re: Re: Re: What is the problem with IP or

About 1/3rd of the pirates came back and bought a copy of the game. With his registration-code setup, it's not hard to setup little tests like that. Those tests can help figure out what fraction of pirates would actually buy a copy - which can be used to help figure out sales lost due to piracy

Actually, the test shows a benefit: increased sales due to the open downloading of the full version of the game. The test also does not account for any friends those pirates may have convinced to buy the game.

And you still can't equate the remaining 2/3 of the pirates to lost sales, because you can't say they would have purchased the game if no other alternative existed. In fact, the test you describes seems to point to the exact opposite: if they couldn't acquire the game for free, they wouldn't pay for it.

Clear lines exist in the case of IP theft.

Why do people continue to equate theft with infringement? It's demonstratively incorrect. Theft involves the loss of property, infringement is the violation of the rights associated with property. The Supreme Court of the US recognized the difference in 1985, in Dowling v. United States. They are both illegal, but they are two different things.

Re: What is the problem with IP or ????

If I see that I can invent something, and it will cost X time and Y dollars, and I can expect that someone with more assets will steal it as soon as it is developed, I won't develop the idea into an invention - DUH!

Well the problem here is in believing in a few false things:

1. The idea that the initial invention is all that is important in making a product a success.
2. The idea that if someone (perhaps someone larger) "copies" the idea, they'll be a huge success and wipe you out.

Both are fallacies that are easily shown to be false. Most successful products weren't based on a burst of inspiration in desire of getting a patent, but due to a necessity in the market followed by much trial and error to get the product/business model/marketing to a point that the product was actually adopted. The patent means very little here. The invention is just a small part of the process -- but by putting monopoly rights on it, you make it much more difficult for anyone else (who may be much better at it) to do those other parts and get the product to market successfully.

As for the idea that someone else will "steal" the product (it's not "steal" by the way -- most people refer to it as competition, and those of us who believe in free markets tend to recognize that that's a good thing), that's also mostly a myth. First of all, if the concept is so easy to just "copy" why does it deserve protection in the first place? Second, again, the success of a product often depends much more than on just the product itself, but the small innovations, the business models and the marketing.

Not only that, but innovation is an ongoing process. So if you invented something, you have a first mover advantage and you probably understand it much better than anyone who "steals" it. So they steal it, but you keep innovating. So just as they offer up the same product you have, you now lead the market with something *better*. And, sure, they'll try to leapfrog you, but that's competition and it's what makes better products and grows markets.

Re: Re: What is the problem with IP or ????

So many things wrong with your arguments.

First of all, if the concept is so easy to just "copy" why does it deserve protection in the first place?

Things are a lot easier once someone has done it. If I spend my lifetime creating a movie, software, music, or some other creation in digital format, then the fact that someone can copy it digitally means it must not have been valuable? WTF?

Second, again, the success of a product often depends much more than on just the product itself, but the small innovations, the business models and the marketing.

So, an inventor can always be overtaken by a megacorporation who has the factories, distribution network, and contacts to get the product into stores? What was your point again?

So if you invented something, you have a first mover advantage and you probably understand it much better than anyone who "steals" it.

The "first mover" advantage is only so valuable. It can be overcome with other advantages like I mentioned above: factories, distribution network, sales contacts. Ultimately, products can be stolen from inventors by savy marketers and mega-corporations. I just love the world you suggest we live in. You have so many assumptions. By the way, are you a marketer or megacorporation, because everything you're suggesting sounds like a sneaky way to open up the market so you can steal people's work while feeding the public lies about its benefits.

So they steal it, but you keep innovating. So just as they offer up the same product you have, you now lead the market with something *better*.
So you're admitting that your new-and-improved system will be worse for the creators, innovators, and inventors? You tell them they just have to keep running and running because they won't be able to make a profit as they do currently? Your suggestions are implicit admittions that your system helps the mega-corporations, the thieves, and the morally-bankrupt who would steal a person's work for their own gain. You'd be a lot more honest if you'd just come out and admit this.

Re: Re: Re: What is the problem with IP or ????

Things are a lot easier once someone has done it. If I spend my lifetime creating a movie, software, music, or some other creation in digital format, then the fact that someone can copy it digitally means it must not have been valuable? WTF?

You have confused value and price. I never said that it was not valuable. I said that the free market would price it at zero. Yet that doesn't mean you cannot make money from it. THere are many business models by which you can make plenty of money, even if you spent all that time creating a movie, software, music or some other creation and giving it away for free.

I'm saying let the free market price the good appropriately and you'll see those other business models emerge.

So, an inventor can always be overtaken by a megacorporation who has the factories, distribution network, and contacts to get the product into stores? What was your point again?

Ah, the old myth. You see, that doesn't happen all that often. Sure, it happens sometimes, because the larger company may be more efficient and better -- but that should be what we want. The better company should win. That's what capitalism is all about.

But, you're very wrong to think that the megacorporation always wins. In fact, the opposite is what occurs. Look at the research of Eric Schiff on what happened in the Netherlands and Switzerland when each chose to forego a patent system. Highly competitive industries developed, rather than big megacorps.

Look at the research of David Levine on the pharmaceutical industry in Italy in the 1970s and 1980s. Prior to 1978 you could not get patents on pharma in Italy, and Italy had one of the world's largest pharma industries, with over 400 pharma companies producing all sorts of new compounds. Yet, after 1978, when patent protection was added, the industry shrunk drastically, and just a few multinational pharma conglomerates took over, using patents to wipe out the smaller competitors.

So, I'm afraid that history does not support your belief, nor do the basic economics.

Smaller companies tend to be a lot more nimble than large lumbering companies who cannot react to those upstarts. Small upstarts not only can change the game and run circles around the big companies quite often -- and as those big companies start to "copy" and try to catch up, the smaller companies have already moved on and continued to out innovate the larger company.

No, it doesn't always happen, but it happens quite frequently. To insist the larger company always copies and wins is flat out false. It's a lot rarer than you would think.

The "first mover" advantage is only so valuable.

Actually, it's EXTREMELY valuable. Again, I suggest you look at the research. David Levine did an excellent study on what happened with the 9/11 Report, which was public domain, but was given to one company to publish first. That company ended up with a huge majority of the sales, despite the fact that other publishers rushed out their own versions within a day or so.

Look at the resarch on the price differential between generic drugs and brand drugs after a drug goes off patent. The brand name drug stays incredibly expensive, despite the generic on the market.

First mover advantage goes incredibly far.

Ultimately, products can be stolen from inventors by savy marketers and mega-corporations.

Again, that only is a problem in a static world where there isn't ongoing innovation. Back here in the real world, the little company tends to be faster, more nimble and comes out with new innovations just as the bigger firm is copying the old product.

I just love the world you suggest we live in. You have so many assumptions. By the way, are you a marketer or megacorporation, because everything you're suggesting sounds like a sneaky way to open up the market so you can steal people's work while feeding the public lies about its benefits.

Not at all. I run a small startup that is out competing with a bunch of megacorporations, and doing quite well. If they copy our idea, that's fine. We purposely set up a business model that was quite hard for them to copy and would effectively rot their own infrastructure. That's called good business.

So you're admitting that your new-and-improved system will be worse for the creators, innovators, and inventors? You tell them they just have to keep running and running because they won't be able to make a profit as they do currently?

Not at all. It's better for creators, innovators and inventors because they continue to innovate and create. Isn't that what we want? The entire STATED PURPOSE of the patent and copyright system is to encourage MORE output. So now when I point out that's exactly what my system does you say that's bad? I'm confused. The more you innovate, the bigger the market is and the more you can profit. Should we have stopped with horse carriages because when the automobile came along it meant the horse carriage makers had to innovate? No, I think we'd all admit that the automobile market was much bigger. I'm talking about helping people move from the horse carriage market to the automobile market so they can be a part of a much larger market.

How is that possibly a bad thing?

Your suggestions are implicit admittions that your system helps the mega-corporations, the thieves, and the morally-bankrupt who would steal a person's work for their own gain. You'd be a lot more honest if you'd just come out and admit this.

My goodness. Not at all. What I'm discussing actually tends to work much better for small companies who are more nimble and can adapt, unlike the lumbering big companies.

It amuses me that some people insist I'm pro-big company when I talk about this stuff, and then other people insist I'm a communist trying to take down big companies.

It's neither. I'm merely pointing out the economic FACTS and REALITY that any company can embrace to increase the size of their market and make more money.

Why not just "Intellectual products" or"intellectu

What we are talking about is the products of intellect, rather than the products of manufacturing. It gets away from the idea of property, but does retain the idea of production or creation. What we want to protect is the ability to market one's intellectual creations with inhibiting the ability of others to learn from them and so produce other creations.

Techdirt

Mr. Masnik,

Having only recently learned about your site, I am still attempting to determine if there is any aspect of "IP" law that you personally embrace. Your comments suggest there is precious little of the law you support, but then again I have seen only a small fraction of your articles.

If I may ask a simple question that obviously pertains to this website, do you support the legal fact that it is protected under copyright law? If so, why? If not, why?

As a sidenote, there are some of us who practice within each of the areas embraced by the term "IP" that prefer to call it by a much more accurate descriptor, namely "patent, trademark, copyright and unfair competition law". Each of these areas fall under what I generically term "business torts". It is regrettable that so much of the discussion concerning usage of the term "IP" evidences a lack of a firm understanding about what each of these areas of law comprise, the nature of rights associated with each, the federal and state sources for the enactment of such rights, how these rights interrelate, and the various policies that underlie each. Please note I use the term patent to cover designs, plants, etc., each of which likewise have their own peculiar characteristics and underlying policies.

One request, if I may. Might you limit to some degree the constant references to these rights as "monopolies"? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad. Granted, there are some "bad apples" who give the law a bad name, but they are the exception to the rule and considered as such by the vast majority of legal practitioners.

Re: Techdirt

I'm not him, but how does one "support" a fact?

Yes, I'm sure many acknowledge it, rightly or wrongly, but the mere fact that there is a law against having TVs that are too big (over 52" diagonal -- see 17 USC 110) in some circumstances doesn't mean it's "right" or that it's illegitimate to argue against it.

And make no mistake, both the rights as embodied in statutes and the rights as claimed by many prominent parties (e.g. the MLB and NFL) are overbroad and unenforceable.

Basically, technology is making copyright law (as well as trademark law for domain owners and disgruntled customers, not to mention patent law for programmers) go from a "business" tort to something far more personal that is affecting people's private lives and leading some to suggest that we require all sorts of snooping and monitoring of people's computers to put a stop to it (indeed, this is the ONLY way they can even attempt to enforce some of the laws as written).

If you want an overview of where the problems are, look above. Those are the issues that are driving people like me to think that we may need to start over with respect to those laws.

Don't get me wrong, I'm sure there are more than a few places where honest people got ripped off and that you've defended them, but the system is becoming less workable by the day, and it's not something you can do a patch job to fix. Especially not if you want the laws to mean anything in light of widespread disrespect when things like copyrights are hard to enforce to begin with. Visit the Pirate Bay sometime if you don't understand what I mean.

Re: Techdirt

Might you limit to some degree the constant references to these rights as "monopolies"?

I realize this was directed at Mike, but I'm a bit confused as to why you feel that labeling copyrights and patents as monopolies is inaccurate. While the term 'monopoly' does tend to have a negative connotation, it is a reasonable description for both terms. Each provides exclusive control over an invention or work for a limited time. A monopoly is typically defined as the exclusive possession or control of something.

Unless you are using non-standard definitions, I don't see how you can argue against the correlation of terms.

Re: Re: Techdirt

I freely admit having borrowed the following from Wiki, but it generally reflects how I use the term "monopoly" versus how others may use it in ordinary conversation:

"The term monopoly...can bear two main definitions:

In Economics, monopoly...is a persistent situation where there is only one provider of a product or service in a particular market. Monopolies are characterized by a lack of economic competition for the good or service that they provide and a lack of viable substitute goods...

In political discourse, the term monopoly is frequently invoked as a blanket generalization in criticism of firms with large market share or lack of what's perceived as "fair" competition."

When I use the term "monopoly" I do so in an economic sense, and as I use the term I have as yet to see an invention protected under patent law or original work protected under copyright law that presents an inventor or author with a true monopoly.

Re: Re: Re: Techdirt

MLS, I'm not sure how that clarifies your remarks. If you are using the phrase based on economics:

"In Economics, monopoly...is a persistent situation where there is only one provider of a product or service in a particular market. Monopolies are characterized by a lack of economic competition for the good or service that they provide and a lack of viable substitute goods..."

Then that clearly describes patents and copyrights. The gov't is granting the ability for the creator to exclude economic competition on that particular good. It is, by all definitions a monopoly.

When I use the term "monopoly" I do so in an economic sense, and as I use the term I have as yet to see an invention protected under patent law or original work protected under copyright law that presents an inventor or author with a true monopoly.

Then I do not know what patent or copyright system you are looking at. Both grant monopolies. That's their entire purpose.

Re: Re: Re: Re: Re: Re: Re: Techdirt

Surely you can not be suggesting that we as an innovative society have lost the ability to design around what someone has invented and claimed in a patent.

Well, in many cases we have lost that ability thanks to the granting of ridiculously broad patents. Yet that is not the point. A different design is not necessarily a substitute. In fact, it's often a hindrance to innovation by making many parties reinvent the wheel for no good purpose. You still receive a full monopoly on the concept covered by the patent itself.

Re: Techdirt

One request, if I may. Might you limit to some degree the constant references to these rights as "monopolies"? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad. Granted, there are some "bad apples" who give the law a bad name, but they are the exception to the rule and considered as such by the vast majority of legal practitioners.

Exception to the rule? Inaccurate? Kind sir, you must be living under a rock to believe these things. Take a look around you!

We have a system here where it is a race to patent the most widly useable thing possible so that you can charge large sums of money in order to "let" others use it.

You have a system where the entire idea of spreading knowledge in a standard format is only allowed if you pay a for profit business liscensing fees!

You have a system where it is better for someone to steal from a store or vandalize property (real property) than to use or expand on an idea!

Everything is being locked down. The consequences are already affect the US economy, which was already at risk. Things are starting to stagnate.

Show me one single thing that has benefited society because of copyright/patent law in the last two decades.

I haven't seen anything "promote the sciences and useful arts" recently. Instead, a good idea comes along and no one is allowed to use it. No one is allowed to improve it, or turn a good idea in an unworkable form into something useful.

Nothing good has come out of so-called "IP" laws (like Mike I do not consider Trademarks a part of that). Hell, the people who wrote the damn thing into the Constitution hate the very idea, and several (such as Ben Franklin) gave their inventions into public domain.

So I ask you kind sir, please step back and take a look at the whole picture before you zoom in to one tiny aspect of it. You very obviously are not seeing the whole point.

When you have a legal culture that encourages patents on stuff like this:

"A video game and game system incorporating a game character’s sanity level that is affected by occurrences in the game such as encountering a game creature or gruesome situation. A character’s sanity level is modified by an amount determined based on a character reaction to the occurrence such as taking a rest or slowing game progress and/or an amount of character preparation. That is, if a character is prepared for the particular occurrence, the occurrence may have little or no affect on the character’s sanity level. As the character’s sanity level decreases, game play is effected such as by controlling game effects, audio effects, creating hallucinations and the like. In this context. the same game can be played differently each time it is played." - Nintendo

You have a serious problem. Contrary to your belief, these are not 'one-off' or 'rare' patent applications. Overly broad and quite often obvious ideas are not only being submitted, but an ungoodly ammount of them are being accepted.

Shit needs to change, and before too much more damage is done. Many countries have laws regulating not only monopolies but against cartels. How you can describe the RIAA, MPAA, and BSA as anything but an effective cartel of their respective clients is beyond me. Big business has been slowly destroying the general welfare in the name of the buck for years, and the pace is accelerating.

Stop turning a blind eye. Wake up and face the reality of what is happening. In the end there is likely one result if the history of the United States has any relevance: these out moded, anti-public, just down right stupid laws will be abolished. The only downside is it will probably take more than a decade.

Re: Re: Techdirt

I reread my comment and realize I was not altogether clear. In referring to "bad apples", my intent was to express that there are persons who misuse/abuse the law, and not to express any opinion concerning patents per se. Yes, patents of questionable validity do issue with regularity. I do not, however, attribute this to a significant defect in the law, but to the fact that people make mistakes...especially within the USPTO where examiners are under pressure to produce with limited/imperfect resources and substantial time constraints.

When I first began my legal practice in the late 70s the state of patent law was relatively stable and did not engender a constant demand as is the case of late that the system is in dire need of change. It was not until the mid 80s or so that I saw the tide changing, not because the law was defective, but because all of a sudden it became quite the "feather in one's cap" to start calling themselves "IP" lawyers. Why? Because many attorneys follow the money, and within these areas of law they saw the opportunity to expand their legal practices to become much more profitable. One need only witness some damage awards to understand this phenomena. Litigators with no experience in all aspects of "IP" law (which I deem an absolute necessity) began calling themselves "IP" lawyers and the die was cast for many of the subsequent abuses we see today. In my view this does not mean that the law is "bad" and requires fundamental change, but that abusive behavior underlies most of the problems we note today.

In my experience the vast majority of innovation occurrng within the US is not preserved under our patent laws. I daresay that only a relatively small fraction of them ever lead to the filing of a patent application, an even smaller fraction lead to the eventual issuance of a patent, an even smaller fraction cover innovations that strike a responsive chord in the relevant industry, a still smaller fraction lead to threatening claims directed at alleged infringers, an even smaller lead to the commencement of litigation, and only a small fraction of those actually result in a trial on the merits. What seems to be driving much of the discussion of the need for reform is the perception that a much larger percentage of issued patents cause real problems in relevant industries, which I submit is an erroneous perception.

I readily admit there are areas of both copyright and patent law that should be looked at for possible amendment (venue shopping being one of them), but I do believe that as a general rule most of our patent laws are basically sound and reflect those policy choices made shortly after our constitution was adopted by the enactment of our first set of patent laws, the Patent Act of 1790.

Please understand that I am not one who absolutely defends each and every aspect of our patent and copyright laws. In fact, I never ceased to be amazed how these two bodies of law, both of which emerged from the same constitutional "womb" set for in Article 1, Section 1, Clause 8, have diverged so radically. Patent law has remained relatively stable since it first appeared in 1790. The same can hardly be said about copyright law. Grant terms of life bordering on the infinite, expired rights being reinstated because Disney and others exerted undue influence over Congress, etc., etc. ad nauseum. It use to be prior to 1978 that a copyright lasted for 28 years, with one opportunity being given to extend it one time for another 28 years. It used to be that copyright notices were mandatory. Apparently that upset some copyright owners so much that they successfully lobbied for a change eliminating the notice requirement altogether. The list goes on.

If any of the above is unclear, of if I have not raised other points deemed important to readers, feel free to comment I will endeavor to expound. Our "IP" laws are not the exclusive province of attorneys and academics, and all persons subject to them are within their right to express opinions pro or con. All I ask it that people realize each area of these laws are unique, and that broad generalizations tend to cause unnecessary confusion in discussions by those who may not be fully aware of what differentiates one from the other.

Re: Re: Re: Techdirt

Patent law has remained relatively stable since it first appeared in 1790. The same can hardly be said about copyright law.

While I agree that copyright law has changed drastically, it is a myth to suggest that patent law has not also changed dramatically, especially in the last 30 years. From the Bayh-Dole act onwards, changes to the patent system have had dreadful consequences. The creation of CAFC has been a huge problem, the allowance of business method and software patents have no basis in law, and on and on and on. To say that the patent system hasn't changed is simply incorrect.

Re: Re: Re: Re: Techdirt

You are much too kind saying that copyright law has changed "drastically". Personally, I am of the opinion that in many significant respects it has become "draconian" and out of kilter with the constitutional impramitur of "limited times", to name but one glaring example.

As for patent law, the basic criteria for patentability has largely remain unchanged for well over a century. The key criteria still are "new, useful and non-obvious". Of the "big four", Sections 101, 102, 103 and 112 to Title 35, little has been done statutorily to amend their contents. Except for the addition of the "offer for sale" and "importation" rights (amendments made by Congress in response to certain decisions by the Supreme Court), most other amendments tend to have been more procedural in nature.

Bayh-Dole and Stevenson-Wyldler are interesting for many reasons. You might find it of interest that a recent CAFC decision held that Bayh-Dole is not a "patent" statute even though it is clearly incorporated into our patent laws. Without going into any details for the sake of brevity, Bayh-Dole has never really struck me as problematic, except to the extent that it is used by arms of state governments to secure and assert patent rights, and especially since they hold in their hip pocket the ability to assert sovereign immunity under the 11th Amendment to avoid infringement liability altogether.

Stevenson-Wyldler is a completely different matter in that it places the USG squarely in the "patenting business", a role that I am certain would have the "Founding Fathers" collectively rolling over in their graves.

I am still working on a draft outline examining the constitutionality of governmental agencies, federal or state, being able to secure patents. In my view there are serious constitutional questions raised that lead me to believe one might be able to successfully defend a suit by either states or the feds on the basis that any patents issued to them constitutes an ultra vires act. The same can be said as well for copyrights.

The formation of the CAFC has its pros and cons, but I do believe that on the whole it has had at least one very positive effect, and that is to bring on a national level some measure of predictability and stability to the law...not only from the perspective of a patentee, but also from the perspective of an alleged infringer.

Re: Re: Re: Re: Re: Techdirt

You are much too kind saying that copyright law has changed "drastically". Personally, I am of the opinion that in many significant respects it has become "draconian" and out of kilter with the constitutional impramitur of "limited times", to name but one glaring example.

On this we agree.

As for patent law, the basic criteria for patentability has largely remain unchanged for well over a century. The key criteria still are "new, useful and non-obvious". Of the "big four", Sections 101, 102, 103 and 112 to Title 35, little has been done statutorily to amend their contents. Except for the addition of the "offer for sale" and "importation" rights (amendments made by Congress in response to certain decisions by the Supreme Court), most other amendments tend to have been more procedural in nature.

There's a big difference in a change in the law and a change in practice. For many years there has been no real test (or, if you must, a ridiculously weak test) for obviousness. So the "non-obvious" part was subverted as merely being the same thing as "new." That is, the way you proved obviousness was with prior art. Yet, this is a major problem because "new" and "non-obvious" are different things. While prior art can show that something is not new, it does not mean that it is non-obvious to those skilled in the art.

Bayh-Dole and Stevenson-Wyldler are interesting for many reasons. You might find it of interest that a recent CAFC decision held that Bayh-Dole is not a "patent" statute even though it is clearly incorporated into our patent laws.

Again, I'm talking about the real world, not the legal definitions. Bayh-Dole has had a tremendous and almost entirely negative impact on the patent system. The only people I know who seem to think it's been good are patent attorneys.

I am still working on a draft outline examining the constitutionality of governmental agencies, federal or state, being able to secure patents. In my view there are serious constitutional questions raised that lead me to believe one might be able to successfully defend a suit by either states or the feds on the basis that any patents issued to them constitutes an ultra vires act. The same can be said as well for copyrights.

Interesting. Would be interesting to see.

The formation of the CAFC has its pros and cons, but I do believe that on the whole it has had at least one very positive effect, and that is to bring on a national level some measure of predictability and stability to the law...not only from the perspective of a patentee, but also from the perspective of an alleged infringer.

Stability to bad laws and setting bad precedents that hinder innovation doesn't seem like a "pro" to me. The problem with CAFC (and many discussions of patent law) is that it becomes dominated by patent attorneys rather than economists. The purpose of patent law is to "promote the progress" and that should be determined at the economic level, not the legal level. Yet CAFC became dominated not just by patent attorneys, but by the very patent attorney who wrote the 1952 Act. So it became a patent attorney's dream, where the focus was solely on more patents, not on whether or not patents promote the progress.

It's useful that the Supreme Court has finally recognized CAFC's widespread abuses and continued ignorance of the need for patents to "promote the progress," but the system has gone so far bad that I don't see how it can be fixed in any reasonable way.

Re: Re: Re: Re: Re: Re: Techdirt

"The purpose of patent law is to "promote the progress" and that should be determined at the economic level, not the legal level."

In which case you should be interested in the eventual outcome of District of Columbia v. Heller, a "Second Amendment" case. An issue faced by the Supreme Court is the emphasis to be place on preambles to clauses in our Constitution. The "patent and copyright" clause possesses a similar structure...i.e., its "promote the progress" preamble. Interestingly, one of the citations by the District of Columbia on how this issue should be resolved is Graham v. John Deere, the seminal (and totally incomprehensible) case relating to how one goes about determining what is obvious and what is not.

"Yet CAFC became dominated not just by patent attorneys, but by the very patent attorney who wrote the 1952 Act. So it became a patent attorney's dream, where the focus was solely on more patents, not on whether or not patents promote the progress."

The CAFC was formed back in 1982 by combining two appeals courts, the Court of Customs and Patent Appeals (CCPA) and the Court of Claims (COC). At no time since its formation has it been dominated by patent attorneys. In fact, at this point in time only three of its judges have even practiced patent law. The majority come from other legal disciplines. As for the Patent Act of 1952, Giles Rich and his colleagues did not set out to craft "new" law. Their labors were directed to codifying the state of patent law as it existed in 1952 based upon the existing statutes and the judicial decisions that had previously interpreted the relevant statutes.

Re: Re: Re: Re: Re: Re: Re: Techdirt

The CAFC was formed back in 1982 by combining two appeals courts, the Court of Customs and Patent Appeals (CCPA) and the Court of Claims (COC). At no time since its formation has it been dominated by patent attorneys. In fact, at this point in time only three of its judges have even practiced patent law. The majority come from other legal disciplines. As for the Patent Act of 1952, Giles Rich and his colleagues did not set out to craft "new" law. Their labors were directed to codifying the state of patent law as it existed in 1952 based upon the existing statutes and the judicial decisions that had previously interpreted the relevant statutes.

If not dominated in numbers, dominated in power. The patent attorneys on the court held much more power over the non-patent attorneys who often deferred to them.

As for Giles Rich, if he didn't set out to craft a new law, then he failed -- in part due to his own interpretations of the law he created with little oversight.

Re: Techdirt

Having only recently learned about your site, I am still attempting to determine if there is any aspect of "IP" law that you personally embrace. Your comments suggest there is precious little of the law you support, but then again I have seen only a small fraction of your articles.

I believe very strongly in the free market and the idea that government intervention is only necessary in cases of market failure. I believe that as you look at the research, you will realize that there is precious little proof of any market failure that requires patent or copyright law. However, I am open to the idea that someone *could* show a situation of market failure under which a monopoly would make sense. But I believe, as did Madison and Jefferson, that it should be under the rarest of circumstances, and only when evidence is shown of the market failure -- rather than as an open system where the market failure is merely assumed.

The problem is that so few people recognize that there are both benefits and downsides to patents and copyrights -- and the more evidence you look at, it becomes clear that the downsides almost always outweigh the benefits.

If I may ask a simple question that obviously pertains to this website, do you support the legal fact that it is protected under copyright law? If so, why? If not, why?

Yes, I recognize that under the law, this site is protected by copyright -- though I have made it quite clear that I will actively ignore that fact and anyone is free to do with the content as they wish, with the recognition that it's either likely to help me or make the person using the content look foolish. You can read more about my feelings on this here:

It is regrettable that so much of the discussion concerning usage of the term "IP" evidences a lack of a firm understanding about what each of these areas of law comprise, the nature of rights associated with each, the federal and state sources for the enactment of such rights, how these rights interrelate, and the various policies that underlie each.

Actually, what I find most regrettable is the suggestion that this is a legal debate at all. It is not. It is an economic debate. The point is what is best for society overall, and that has little to do with the legalities involved. For some reason, though, there's this idea that only lawyers should be able to discuss (or make the laws!) related to intellectual property, rather than those who actually understand the economic impact of those laws.

One request, if I may. Might you limit to some degree the constant references to these rights as "monopolies"? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad.

Actually, as I point out above, I find the term monopolies vastly more accurate than intellectual property. Can you explain why "monopoly" is inaccurate. It is 100% accurate. It is a gov't granted monopoly. Even Jefferson and Madison were honest enough to admit that. You're one of the first people I've ever seen to even debate the point, so I'm curious as to why you believe they are not monopoly rights.

>Might you limit to some degree the constant references to these rights as "monopolies"? That word is totally inaccurate and creates an impression in the minds of many unfamiliar with the vagaries of the law that these laws are somehow bad.

The very author of the Constitution defined them as monopolies. And he too had the impression in his mind that monopoly carried a bad connotation and that exactly these sorts of laws carried an inherently bad aspect, and that the danger was very great that the inherent evil in such laws could easily overwhelm any intended good.

"But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good." -- James Madison.

I'm with Thomas Jefferson and James Madison. I agree that copyright and patent and similar laws are permissible. Iagree that category of laws can potentially be useful. I agree that category of laws can potentially be beneficial in promoting people to create and supply us with new valuable writings and discoveries. I agree that they are government created government imposed artificial monopolies, and that such monopolies can potentially be useful and beneficial. I I agree, as Thomas Jefferson so eloquently explained, that writings and discoveries are not property. I agree the danger is very great that for such monopolies to cause more harm than good.

Such laws need to be extremely carefully considered, with explicit careful consideration that they sole purpose is the public benefit - as is required by the constitution. Careful consideration of how and why a law is to benefit the general public. Explicit acknowledgment that it is an artificial government imposed monopoly. Explicit acknowledgment that any such law carries inherent harms along with it. Explicit acknowledgment and careful consideration of the fact that such harms may easily exceed all of the benefits and good intentions of such a law.

Yes, I fully understand the arguments and motivation of copyright etc. to encourage to create stuff. I agree that it can be valid and useful and beneficial. However on the other side of this issue there are people who have not been grasping the subject and the issues involved. People who simply chant Property Property Property and Thief Thief Thief. People who notice that existing copyright and related laws do not match property law and think there is some mistake or flaw in the law, people unhelpfully trying to "fix" it into property law. People demanding more and more extreme laws based on this invalid Absolute Natural Right Property that trumps all logic and reason... the mindset "It is property and we must FORCE it to be property, and anyone who dares question that is an evil commie anarchist".

Our current law on the subject has already become an abominable mess in many respects, and we just have the Property crowd endlessly demanding to ratchet it up even further and more extreme. And our politicians have been catering to powerful industry lobbyists, catering to massive campaign donations, buying into the Property chant, and ignoring the very foundation of such law. Ignoring the largely oblivious public and their lack of powerful lobby force and lack of major money gifts to the politicians on the issue.

When metaphors attack..

I wrote a paper concerning the danger of the IP metaphor a couple of years ago, called 'When Metaphors Attack: How Intellectual Property Frustrates Access to Knowledge in a Networked World'. There are other models, like the 'Moral Rights' one, which can be just as fallacious and damaging too, which I mention.

I fully agree that these do not cover all types of patents. They spcifically cover only "mashup patents".
But look at it this way:
The media and the courts (not to mention the USPTO) spend too much time on frivolous/obvious/repeated patent claims on _such_ a large scale, that proving that mashup patents are **programmatically** "inventable" could create a _lot_ of awareness about frivolous patents and "lego-patents"
This ultimately helps the cause by helping create awareness about the not-so-genius thinking that involves daily innovation. Relativity, QED, QM, Standard Model, E8, fall into the true-genius category. Luckily, that isn't patentable.
Software patents are, as Oracle Inc. says, just re-adjustemnts of intellectual ideas. Larry Ellison has a very sound engineering head. Unlike scavenging IP-only companies.

So,
Scrabulous + patent-generator (like dack's web economy bullshit generator) == really solid proof against lego-patents.
It explains to the judges a few crucial things that they otherwise might not be able to see through.
HTH!

IP is property

Hi, the opening argument that 'property rights' are about managing scare resources is hardly fair.

Tangibility, by now, should not be an issue for argument. If material substance was all that really mattered then a painting should not be worth more than the canvas and the paint - yet it is.

Intellectual property (such as, in my field, the designs for a microprocessor) take time and effort to produce. That it can be duplicated indefinitely would naturally wipe the value of any such work were it not for relevant legislation.

It's intellectual in that information is nothing without the additional parts (brain) needed to interpret it. It's property in that 'he who makes it, owns it'.

"...because anyone can own it and it doesn't diminish the ownership of anyone else" - intellectual comment? I think not!

Re: IP is property

Rather ignorant post and you're clearly biased ("in my field..."). Tangibility is an absolute requirement for property, by the definition of the word. A painting is made up of canvas and paint. The values of paintings vary people value the particular arrangement of canvas and paint over another. Sometimes (often) influenced by the name of the person who created that arrangement. People desire thinkgs which are popular or are considered good style or high class. Power or fame or reputation are no more "property" than are ideas; the painting analogy fails you.

'"...because anyone can own it and it doesn't diminish the ownership of anyone else" - intellectual comment? I think not!' - intellectual comment? I think not!

Re: IP is property

Intellectual property (such as, in my field, the designs for a microprocessor) take time and effort to produce. That it can be duplicated indefinitely would naturally wipe the value of any such work were it not for relevant legislation.

I've pointed it out repeatedly that this is a myth. The idea that the only way to make money is through artificial protectionism has been proven wrong over and over again.

The fact that it takes time and effort to produce is not a factor here. That's known as a sunk cost. Yet, if you can employ a business model that recoups those costs, it's not a problem. The point is that such business models exist without resorting to artificial scarcity.

This Article & Comments

Firstly, I want to thank Mike for the article and for taking the time to reply to comments.

Secondly, as a UK citizen I am immensely impressed at the foresight of your Founding Fathers in this and other matters. At the time, IIRC, many whole industries in Europe were the subject of royal monopolies, including such examples as the East India Company, given exclusive rights over the exploitation of that region.

Then, as now, no-one who wields such a monopoly can see the harm it does to society as a whole. Then as now such monopolies need to be examined and curtailed, if not dismantled, for the greater good.

Fancy term for an old idea?

I don't see the need to call this 'Intellectual Property', 'Imaginary Property', etc. We are talking about 'SECRETS'!

A secret is an Idea, or process, that you have created, and can choose to share with others. However, once you share that information, it is no longer a secret. It becomes public.

If your company/business is concerned about their 'Intellectual Property', aren't they really concerned about their 'trade secrets'? And, looking at it in that light, isn't the whole 'Intellectual Property' issue all about what to do after your secret has gotten out, and is no longer a secret?

This whole argument about 'Intellectual Property' smacks of people not wanting to take responsibility for letting their secrets become public.

Intellectual Property is a perfectly wholesome ter

Intellectual Property when used to describe ownership of information as opposed to the material it's encoded upon is a perfectly fine and accurate term.

The problems people have with IP arise from the corruption of its meaning due to copyright and patent. It is those privileges that interfere with the ability for IP to behave as property, in the way we are used to material property behaving.

Copyright and patent are transferable IP privileges (often abusively elevated into rights, as in IPR). They could be termed legal properties concerning IP, but they are not intellectual property.

So, Intellectual Property is a most meaningful and appropriate term to describe the intellectually apprehendable aspects of creative works, as opposed to their materially apprehendable aspects.

All that remains is for people to correctly distinguish between the natural rights concerning IP, and the anachronistic commercial privileges concerning IP.

Abolish copyright and patent, and then IP behaves as naturally as any material property.

That IP can easily and cheaply be made abundant does not sanction its theft.

Please, call it what it is, explotation of the pub

Clearly, from my perspective, this is corruption at work. As an honest and responsible American I have not, nor will not, support any corporation which offers only proprietary solutions or standards. These days it sure seems that corporations are becoming increasingly greedy, unethical and unpatriotic.

It IS TO Intellectual Property

'Intellectual' conveys the sense that 'it' is not tangible, can't be seen, weighed, felt, and has no physical existence. It exists only in the human mind (as opposed to objective implementations of the idea.)

'Property' conveys the sense that the law allocates cognizable legal rights in 'it.' As with other kinds of property interests, such as ownership interests in corporations, claims, obligations, privacy interests, real estate, and so on, you can assert legal claims based in intangible property interests. Sometimes, they are called 'legal fictions' to convey the idea that the law treats them as real even though they are not real.

If you are wanting another name, you might want to consider looking to the commercial value of a work or an invention. IP is a convenient shorthand, and accurate as far as it goes, but it does not convey the idea that the law should protect the laborer as to the fruit of his labor. The law protects inchoate interests of all kinds, and IP shouldn't be any different from 'ownership' of title to real estate or an interest in a trust or corporation.

Re: It IS TO Intellectual Property

'Property' conveys the sense that the law allocates cognizable legal rights in 'it.'

But it conveys a very different set of rights than tangible property. That's why it is not property.

As with other kinds of property interests, such as ownership interests in corporations, claims, obligations, privacy interests, real estate, and so on, you can assert legal claims based in intangible property interests.

But tangible property doesn't resort to the public domain. Doesn't require the same types of registration or approval process (patents), doesn't have fair use, etc. etc. etc.

They are different. They have some similarities, but many differences.

Property is a bad description.

and IP shouldn't be any different from 'ownership' of title to real estate or an interest in a trust or corporation.

But it is extremely different, as we've noted over and over again. To pretend it isn't different is simply incorrect.

Re: Re: It IS TO Intellectual Property

>> 'Property' conveys the sense that the law
>> allocates cognizable legal rights in 'it.'

> But it conveys a very different set of rights
> than tangible property. That's why it is not property.

You have this backwards, bub. 'Property' isn't proscriptive, but descriptive. Whatever the legal system gives you rights in is 'property.' Example: When the law permitted ownership of human beings, as in slavery, slaves were 'property.' You argument SHOULD be, 'do we need to afford legal rights protecting ideas?, NOT, 'are ideas property?'

Our legal system is an artifact, a man made structure. We can change it anytime we like. You are correct in that our modern law grants monopoly interests in ideas and we mostly accept that this is good and proper. The question is one of BALANCE.

I also think that you are correct in decoupling the concepts of copyright, patent, and trademarks. However, you forgot privacy and identity interests, which are as important if not more so than the other three. Our rights to our identity and privacy certainly fall under the umbrella of IP.

>> and IP shouldn't be any different from 'ownership'
>> of title to real estate or an interest in a trust
>> or corporation.

> But it is extremely different, as we've noted over
> and over again. To pretend it isn't different is
> simply incorrect.

You didn't understand what I meant to say, or I didn't say it right (I made another post in to your first article where I made this point.) If I as a laborer manufacture a physical product, I am entitled to the value of my labor. If I as a laborer manufacture an intellectual product (one that has existence only in the human mind), why shouldn't I be entitled to the value of my labor?

In a way, discussing 'ownership' is a bit stupid, because what we are REALLY discussing is the protection afforded by the legal system for the intellectual work we do. You seem to be saying that, 'it doesn't have any value unless you can see it.' I don't think you mean this, but this is the logical implication of your point, taken to the extreme. As a software developer, I see my work as valuable to my employer, as so does my employer, so much so that my employer pays me to produce ideas, which are IP even though they may be represented as source code, or as tiny magntized bits on magnetic media.

Re: Re: Re: It IS TO Intellectual Property

You have this backwards, bub. 'Property' isn't proscriptive, but descriptive. Whatever the legal system gives you rights in is 'property.' Example: When the law permitted ownership of human beings, as in slavery, slaves were 'property.' You argument SHOULD be, 'do we need to afford legal rights protecting ideas?, NOT, 'are ideas property?'

Ah, are you a lawyer? I'm not discussing this from the specific legal definitions, but from the realistic real world definitions. That's why I explained why we even have property rights in the first place -- for better allocation of scarce resources. The laws follow on that economic reality. So I'm afraid it's you who have it backwards.

Our legal system is an artifact, a man made structure. We can change it anytime we like. You are correct in that our modern law grants monopoly interests in ideas and we mostly accept that this is good and proper. The question is one of BALANCE.

If you can offer up a system where both sides benefit and neither side is worse off, why do you need balance? Balance only makes sense in a zero sum game. Ideas are not a zero sum game.

I also think that you are correct in decoupling the concepts of copyright, patent, and trademarks. However, you forgot privacy and identity interests, which are as important if not more so than the other three. Our rights to our identity and privacy certainly fall under the umbrella of IP.

Indeed. I'm sorry if I didn't make it clear (in the second post in the series) that there are other concepts that fall under IP. I was focusing on these three because that's what's most often discussed in the types of "educational" sessions I was offering a companion to.

You didn't understand what I meant to say, or I didn't say it right (I made another post in to your first article where I made this point.) If I as a laborer manufacture a physical product, I am entitled to the value of my labor. If I as a laborer manufacture an intellectual product (one that has existence only in the human mind), why shouldn't I be entitled to the value of my labor?

There are many problems in the paragraph here, so let me try to highlight each one.

First, you conflate "value" and "price." The two are quite separate (as an extreme example, you value air very much, but you pay nothing for it). Price is set by the market at the intersection of supply and demand. Value is a part of the demand curve. Yet if supply is infinite, it will meet the demand curve at a price of zero.

So, everyone is entitled to the value of your labor, but it is not the laborer who determines the value, but the market. And in the free market, price will be driven to the marginal cost.

Finally, no one is suggesting that you are not entitled to make money from your labor. Quite the opposite. As I've made clear, by understanding these economics, you can make much more for your labor. Why you think we said otherwise, I do not understand.

In a way, discussing 'ownership' is a bit stupid, because what we are REALLY discussing is the protection afforded by the legal system for the intellectual work we do. You seem to be saying that, 'it doesn't have any value unless you can see it.'

Not at all. I'm afraid you have misread what I have written. It has plenty of value. Tremendous value. But that does not matter to the *price*. Yet, that tremendous value *can* be turned into money by connecting that value to some scarce (not tangible, but scarce) good which is made more valuable thanks to the infinite good.

I don't think you mean this, but this is the logical implication of your point, taken to the extreme.

Not at all. I don't see how you can make that claim unless you believe that price and value are the same. They are not.

As a software developer, I see my work as valuable to my employer, as so does my employer, so much so that my employer pays me to produce ideas, which are IP even though they may be represented as source code, or as tiny magntized bits on magnetic media.

Yes, and there's nothing wrong with that. The bits that you produce are scarce before you produce them. Your employer is paying you for a scarce good (your ability to produce good code). In fact, the more good code you produce, the more any employer will assume that you can produce good code in the future, and the more they're willing to pay you for it. That actually supports this model exactly. You are being paid for a scarce good (your time and your ability to produce good code) and it's made more valuable by the infinite goods you produced in the past.

Re: Re: Re: Re: It IS TO Intellectual Property

There have been many theories as to why we have property rights, but so far as I know no definitive conclusions. Suffice it to say that we have property rights without getting into why.

> So I'm afraid it's you who have it backwards.

The word 'property' describes concepts in the real world. The legal system alters and modifies rights that all human societies and cultures have recognized. 'Property' exists in all human groups, as opposed to 'property rights' which are governed by the legal norms of particular societies.

> Ah, back to balance. Balance in IP is a myth:
> http://www.techdirt.com/articles/20071214/184433.shtml
> If you can offer up a system where both sides
> benefit and neither side is worse off, why do
> you need balance? Balance only makes sense in
> a zero sum game. Ideas are not a zero sum game.

No, a balance between the natural state where all ideas are free and there is no protection for IP (as Jefferson recognized in your initial quote) and the present legal climate where the perception (or reality) is that some (RIAA, MPAA, patent trolls, etc.) abuse the legal system for wrong purposes (abuse of the IP rights granted by law.) There is always a balance -- we live in a continuum with an infinite number of shades of grey, and the trick is to pick the shade of grey that maximizes benefits while minimizing costs.

> Indeed. I'm sorry if I didn't make it clear (in the
> second post in the series) that there are other
> concepts that fall under IP.

You did. Unfortunately I was the victim of identity theft on Tuesday of this week and was responding emotionally.

>> If I as a laborer manufacture a physical product,
>> I am entitled to the value of my labor. If I as a
>> laborer manufacture an intellectual product (one
>> that has existence only in the human mind), why
>> shouldn't I be entitled to the value of my labor?

> First, you conflate "value" and "price."

Actually, you mean 'cost' and 'price.' 'Value' is a conclusion based on a number of factors, including the cost of production. Obviously if the cost exceeds the price, the value is zero -- or less than zero as in the case of an asbestos laden building that the owner has to pay the buyer to take off his hands. See next.

> Price is set by the market at the intersection of
> supply and demand. Value is a part of the demand
> curve. Yet if supply is infinite, it will meet the
> demand curve at a price of zero.

However, if the COST of production is, say, $6.00 an hour, but the product cannot sell for enough to justify the cost, the value will be zero. If it costs me $100/foot to build a home but I can only sell it for $90/foot (hypothetical maket rate) the value of the product is zero.

> So, everyone is entitled to the value of your
> labor, but it is not the laborer who determines the value,

True, but the laborer determines his cost. If his wages exceed the amount employers are willing to pay for a job, it's called unemployment.

> but the market. And in the free market, price
> will be driven to the marginal cost.

The price will be the amount that a seller will accept and a buyer will pay. This isn't really relevant to the discussion at hand.

> Finally, no one is suggesting that you are not
> entitled to make money from your labor.

Even if the fruit of the labor is an idea?

>> In a way, discussing 'ownership' is a bit stupid,
>> because what we are REALLY discussing is the
>> protection afforded by the legal system for the
>> intellectual work we do. You seem to be saying that,
>> 'it doesn't have any value unless you can see it.'

> Not at all. I'm afraid you have misread what I
> have written. It has plenty of value. Tremendous
> value.

The implication of your heading is that 'it' is 'not property.' You will pardon me from concluding that since you claim that 'it' isn't property that 'it' has no monetary value.

> I don't see how you can make that claim unless you
> believe that price and value are the same. They are not.

I know they aren't the same. As in your example, air has tremendous value but no price (unless you need to be hooked up to an inhaler.) The marginal cost of Win 2003 Server is essentially the cost of the media, which is almost zero if you download it (which I just did - from Microsoft.) It cost me nothing, it cost Microsoft nothing, but it might have great value to me if I install and run it.

But 'it' is not the CD, nor the stream of bits comming in over the wire, nor the pits and flats on the media, but the intellectual content. Do you know Neal Stephanson's long essay 'Cryptonomicon'?

I think I agree with you in almost everything. I particular abhor software patents. I agree that the present system is broken and needs to be fixed. I think we should strongly uphold the principle that ideas are free. However, I think we should strike a balance (that word again) between the freedom of ideas and the ability of one to reap the fruit of his labor, whether artist or developer. Or lawyer for that matter.

IP ~IS~ property, to the extent that we have a legal system that enforces rights and liabilities with respect to ownership interests in idea. This actually is a good thing as it allows intellectual work, again either as an artist or developer or lawyer.

Re: Re: Re: Re: Re: It IS TO Intellectual Property

> First, you conflate "value" and "price."

Actually, you mean 'cost' and 'price.' 'Value' is a conclusion based on a number of factors, including the cost of production. Obviously if the cost exceeds the price, the value is zero -- or less than zero as in the case of an asbestos laden building that the owner has to pay the buyer to take off his hands. See next.

No. I do not. I mean value and price. Cost is something entirely different. They are 3 separate things. Value is a part of the demand side of the equation. Cost is a part of the supply. Price is the intersection of supply and demand.

And you are incorrect that if cost exceeds price the value is zero. There are things where the cost may exceed the price, but the value is still greater than zero.

However, if the COST of production is, say, $6.00 an hour, but the product cannot sell for enough to justify the cost, the value will be zero. If it costs me $100/foot to build a home but I can only sell it for $90/foot (hypothetical maket rate) the value of the product is zero.

You have an odd, and incorrect, understanding of "value." I'm not going to give you an economics lesson here, but I would suggest you learn what value means.

In the meantime, to show why you are wrong, if it costs you $100/foot to build a home, but you can only sell it for $90/foot the house still has plenty of value. To think that the house doesn't have value makes no sense. The house is valued by at least someone at $90/foot (the demand side of the equation). What you're saying is that the supply keeps it above that price meaning that the demand and supply curve do not meet at the *cost* ($100/foot).

But, even more to the point, if you couldn't sell it for the price you built it at, then you would (if you were smart) do something to either lower your cost of production or raise the value of the house. It doesn't mean you just abandon the house. It means you do something. Maybe you repaint it, and that gets people willing to pay $95/foot. Then you relandscape. Etc. etc. etc. You don't look at it in isolation, but in the larger ecosystem, which is exactly what I'm talking about with IP endeavors. When you look at it in the larger ecosystem, you realize that it helps to make other things more *valuable* which increases demand, and in turn, can increase the price of those things.

True, but the laborer determines his cost. If his wages exceed the amount employers are willing to pay for a job, it's called unemployment.

You have an exceptionally narrow and incorrect view of economics. If the laborer determines his wage at a price that the market does not believe appropriate, it may be unemployment, but that laborer will soon be forced to look for jobs at a lower wage or he won't eat.

Note, again, that it's the market -- the INTERSECTION of both sides -- that determines the clearing price. One side does not, as you falsely imply.

> Finally, no one is suggesting that you are not
> entitled to make money from your labor.

Even if the fruit of the labor is an idea?

If you can actually sell it, more power to you. The point is that you won't be able to sell it in an efficient market. But what you can do is USE that idea to make something else (something scarce) much more valuable.

I have said this before.

The implication of your heading is that 'it' is 'not property.' You will pardon me from concluding that since you claim that 'it' isn't property that 'it' has no monetary value.

Re: It IS TO Intellectual Property

This is OT, but I'd like to explain my understanding of cost, price, and value. Cost is the monetary amount of resources required or spent to acquire an item, whether labor, supplies, durable equipment, and so on. Every item has a cost which can be measured in money. (Air is not an item.) Price is the amount of money agreed on by a seller and a buyer for an exchange. A price set by a seller is merely an offer to sell at that price, just as a price offered by a buyer is an offer to purchase at that price, and we quite frequently negotiate prices. Fair market value, the objective determinant of actual prices, assumes that neither buyer nor seller operate under any compulsion. There are other kinds of prices as well, such as liquidation, wholesale, quick sale, etc. Value is not an objective concept, like cost and price, but is a subjective judgment based on a number of factors. An article may have great value to one person but no value to another, such as a family photograph. The key point is that value is by its nature individual and you cannot talk about the value of something without onsidering the context. For example, I have a 20M hardrive out of an 8088 machine that has much value to me because of the contents, but its value to anyone else is (probably) zero. A synonym for value is worth, and different people can assess the same object at very different worths. What is the worth of your lucky socks? Now, what is their price?

These definitions of cost, price, and value are not odd, but standard definitions.

> No. I do not. I mean value and price. Cost is
> something entirely different. They are 3 separate
> things. Value is a part of the demand side of
> the equation. Cost is a part of the supply.
> Price is the intersection of supply and demand.

I'm afraid I will have to accuse you of using odd and nonstandard concepts of cost, price, and value. A dictionary might help.

> You have an odd, and incorrect, understanding of
> "value." I'm not going to give you an economics
> lesson here, but I would suggest you learn what
> value means.

I know what value means, thank you. Your problem might be that there is more involved here than economics.

> In the meantime, to show why you are wrong, if it
> costs you $100/foot to build a home, but you can
> only sell it for $90/foot the house still has
> plenty of value.

Not to me. To someone else it might have value, but not at $100/foot. If a seller wants $110/foot and sets the price at that amount to cover his costs and make a return, but the market value is only $90/foot, the house is essentially valueless. Yes, if you give it away, it will be a tremendous value to the recepient, but that lacks context. Ask any real estate agent why a property sells, and he or she will tell you that the reason is that the value to the buyer at the time of sale is greater than the agreed upon price and the value to the seller at the time of sale is less than the agreed upon price.

> But, even more to the point, if you couldn't sell
> it for the price you built it at, then you would
> (if you were smart) do something to either lower
> your cost of production or raise the value of the house.

In this hypothetical, cost is fixed and so is the market value. The builder cannot lower his cost, since that is what he spent to build the house, and he cannot raise the market value, since that is set by the market. The only thing he can do is lower the price, in which case he will not recover his cost. Thus, the house has a negative value ~to him~ even if it has a positive value ~to another~.

>> True, but the laborer determines his cost. If his
>> wages exceed the amount employers are willing to
>> pay for a job, it's called unemployment.

> You have an exceptionally narrow and incorrect view
> of economics. If the laborer determines his wage at
> a price that the market does not believe appropriate,
> it may be unemployment, but that laborer will soon
> be forced to look for jobs at a lower wage or he
> won't eat.

What do you think I said? Not only do you insult me, you cannot comprehend what I wrote. You say that I have an incorrect view and then immediately reaffirm my point.

> Note, again, that it's the market -- the INTERSECTION
> of both sides -- that determines the clearing price.
> One side does not, as you falsely imply.

Again, this was the point I made. Price and value are NOT the same concept. (Part of the confusion may stem from the fact that we use the term 'market value' as a synonym for 'price.')

>>> Finally, no one is suggesting that you are not
>>> entitled to make money from your labor.

>> Even if the fruit of the labor is an idea?

> If you can actually sell it, more power to you.
> The point is that you won't be able to sell it in
> an efficient market.

??? In point of fact, I recently acquired three 'ideas' -- in the form of books by Graham, Lamkins, and Seibel (on Lisp). I bought all three on half.com and amazion.com at less than the stated retail price. This ~IS~ an efficient market, and I valued these ideas (books) sufficiently that I paid money to purchase them. Note: the value is not in the paper and ink, but in the intellectual content.

> But what you can do is USE that idea to make
> something else (something scarce) much more valuable.

What about a recording? The original item, the concept of the song, is extremely scarce as it exists only in the mind of the composer. But let it be recorded -- then it becomes much less scarce.

>> The implication of your heading is that 'it' is
>> 'not property.' You will pardon me from concluding
>> that since you claim that 'it' isn't property that
>> 'it' has no monetary value.

It's you, friend, that's confused. Let me clear this up. The legal system enforces rights as to property interests. To say that IP isn't property, which is exactly what you said earlier in this thread, implies that we have no rights to our ideas. It's one thing to argue that we shouldn't have rights to our ideas, and this is a position that I have a lot of sympathy for. It's entirely another to suggest as you do that our ideas in fact lack legal protection.

Here are your words, and I quote:
>>>> but we should be careful to not use it in a way
>>>> that reinforces the concept that it's property
>>>> just like other kinds of property.

Consider a quick taxonomy of property: real/personal property; tangible/intangible personal property; documents, contract rights, obligations, notes, commercial paper, securities, unliquidated debts, and so on. If we can protect an ownership interest in a corporation, a 'thing' which has no physical existence whatsoever, surely we can protect an ownership interest in a poem or a song, or a piece of software. Correct?

> Things may have plenty of value without being property
> or without costing anything.

Name one thing that has value and can't be considered property. Hope, love, joy, peace, etc. have much value, but are not things. My note to the bank evidences my obligation to repay a debt, it's not a tangible thing, but my bank certainly possesses a property interest in my debt to the bank and can enforce that obligation upon my nonpayment.

>> IP ~IS~ property, to the extent that we have a
>> legal system that enforces rights and liabilities
>> with respect to ownership interests in idea.

> No, it is a regulatory monopoly. That is not the same
> as property.

This is a distinction without a difference. Your term 'regulatory monopoly' asserts the existence of property rights in ideas. Take away the property rights in the ideas and you destroy the regulatory monopoly.

Re: Re: It IS TO Intellectual Property

I'm going to ignore most of the debate over the definitions of cost, value and price, other than to say clearly we are using different definitions. Mine are based on economics. I don't see what your are based on, but if you want to use them, go ahead.

In this hypothetical, cost is fixed and so is the market value. The builder cannot lower his cost, since that is what he spent to build the house, and he cannot raise the market value, since that is set by the market. The only thing he can do is lower the price, in which case he will not recover his cost. Thus, the house has a negative value ~to him~ even if it has a positive value ~to another~.

It wasn't clear from your initial post that the house was built already. You don't mean that costs are "fixed" you mean that they're "sunk costs." Related, but different.

However to say that the builder cannot raise the "value" is incorrect. The value is not set by the market, the price is. So again, we run into the same problem of definitions. Oddly, in your next sentence you admit that the value is different to different people, while previously stating that the value cannot be changed.

It is ridiculous to think that the builder cannot raise the value of the house by doing something else to it. The point that I keep trying to make is that when you limit hypotheticals to single case scenarios you miss the wider ecosystem as to why the model I'm discussing makes sense.

That's why you get upset when people say you shouldn't sell music (the output). But when you focus just on the music, you miss the wider ecosystem, which notes that giving away the music makes many other things (concerts, access, etc.) much more valuable (raising demand).

In point of fact, I recently acquired three 'ideas' -- in the form of books by Graham, Lamkins, and Seibel (on Lisp). I bought all three on half.com and amazion.com at less than the stated retail price. This ~IS~ an efficient market, and I valued these ideas (books) sufficiently that I paid money to purchase them. Note: the value is not in the paper and ink, but in the intellectual content.

You did not acquire the ideas. What you did was acquire scarce goods (books) that were made much more valuable by the infinite goods (the ideas) that were in them. So, yes, the price was set by the market, as we can see, and it's the infinite goods that made the scarce goods valuable. Proving my point. I'm not sure why you think it proves yours.

What about a recording? The original item, the concept of the song, is extremely scarce as it exists only in the mind of the composer. But let it be recorded -- then it becomes much less scarce.

Yes. I have made clear that any song not recorded is still scarce. That's why it's a reasonable model to pay someone *to record* that song. However, once it's recorded and available in digital format, it becomes infinite. However, that's not a bad thing. It can then be used (for free) to promote many other scarce goods, including the ability for the musician to create the next song (for a fee, since it's scarce prior to production).

The legal system enforces rights as to property interests. To say that IP isn't property, which is exactly what you said earlier in this thread, implies that we have no rights to our ideas. It's one thing to argue that we shouldn't have rights to our ideas, and this is a position that I have a lot of sympathy for. It's entirely another to suggest as you do that our ideas in fact lack legal protection.

Aha. Now I see where we are getting confused.

We are arguing two separate things. I am not arguing that there isn't legal protection for ideas. I am arguing that it's not necessary. I do think that there needs to be legal protection for REAL property, because economically that makes sense. I am saying there is no need for it for ideas, because economically it does not make sense -- and the reason it does not make sense is because ideas are very different from property.

Re: Re: Re: It IS TO Intellectual Property

> However to say that the builder cannot raise the
> "value" is incorrect. The value is not set by
> the market, the price is. So again, we run into
> the same problem of definitions. Oddly, in your
> next sentence you admit that the value is
> different to different people, while previously
> stating that the value cannot be changed.

??? You get a zero, bub. The VALUE is set by the market, which is exactly what 'fair market value' or 'auction value' means. The owner has very little to do with controlling the value, except in cases of monopoly which is why we generally disfavor them. OTOH, the PRICE is set by the owner, at least initially, and is subject to negotiation between the seller and the buyer. The value of an item to an individual is separate and distinct from the fair market value, which is the point in my comment about the explanation of real estate sales.

> That's why you get upset when people say you
> shouldn't sell music (the output). But when you
> focus just on the music, you miss the wider
> ecosystem, which notes that giving away the
> music makes many other things (concerts, access,
> etc.) much more valuable (raising demand).

True in some cases but not others. Do you think that Microsoft would see an increase in demand for XP or Vista if it gave XP or Vista away for free? I don't think so.

> You did not acquire the ideas. What you did was
> acquire scarce goods (books) that were made much
> more valuable by the infinite goods (the ideas)
> that were in them. So, yes, the price was set by
> the market, as we can see, and it's the infinite
> goods that made the scarce goods valuable. Proving
> my point. I'm not sure why you think it proves yours.

Actually, the ideas were exactly what I acquired, not the physical objects, although the the physical objects contained the ideas. In fact, two of the products, Seibel and Lamkins, are available for free, but I chose to purchase the books in large part to encourse these men by financial reward. I 'own' both soft and hard copies of Lamkins and Seibel, but that doesn't prove your point, as the purpose of these authors isn't to sell books but to promote Lisp. This was THEIR decision, not mine.

> Yes. I have made clear that any song not recorded
> is still scarce. That's why it's a reasonable model
> to pay someone *to record* that song. However, once
> it's recorded and available in digital format, it
> becomes infinite. However, that's not a bad thing.

No? You are promoting theft, plain and simple, at least to the extent that the artist's intent was to derive economic advantage. How in the h**l does a free, infinite supply insure a return to the performer? In some cases, it increases demand, while in others it won't. Example: recordings of the Beatles. Since they cannot perform in person, the only income they derive is from selling their recordings. How does giving away the digital form of the recordings help them (or their estates for the dead Beatles?)

> We are arguing two separate things. I am not arguing
> that there isn't legal protection for ideas. I am
> arguing that it's not necessary.

What you are arguing is that intellection work and the fruit, intellectional property, should be pricelss (free) and therefore valueless. This is the ultimate insult to all thinkers and creators -- to say that BY LAW they cannot profit from their work.

> I do think that there needs to be legal protection
> for REAL property, because economically that makes sense.

Actually, we don't 'own' REAL property because in theory real property cannot be 'owned.' All we can own is title to or other interests in real property. Besides, we have elaborate systems set up to deal with real property, such as deeds, recorders of deeds, titles, title insurance. etc., non of which applies to IP except to patents.

> I am saying there is no need for it for ideas,
> because economically it does not make sense --
> and the reason it does not make sense is because
> ideas are very different from property.

If you mean 'property' in the sense of tangible property, you are correct. If you mean 'property' in the usual sense of describing a set of rights in a thing, you are dead wrong. Miscrosoft can 'own' rights to sell XP and Vista just as surely as it can own a building in Redmon. Same thing as to the recordings made by the Beatles, whether manifested on vinyl, tape, CD, paper, whatever.

> It can then be used (for free) to promote many
> other scarce goods, including the ability for the
> musician to create the next song (for a fee,
> since it's scarce prior to production).

What if the musician has disbanded, or disabled, or dead, or otherwise not performing? Suppose it's a reproduction of a one-of-a-kind, such as a painting or a sculpture? You have turned your original essay into a provocation for piracy, which I find absolutely reprehensible.

Suppose you tell your employer that you are willing to work for free, that you expect no return for your efforts, because that is EXACTLY the model you have just described.

Re: Re: Re: Re: Re: It IS TO Intellectual Property

Everybody and his brother knows that Mikey is a paid corporate stooge and a shill for RIM

And everyone also is quite aware that angry dude is a known liar.

I have stated, repeatedly (and angry dude even admitted that he made this up) that I do not do any public advocacy work. None of our clients have ever hired us to do anything in terms of advocating anything in public.

Furthermore, I'll state that we have never done any work for RIM and I have been equally as publicly scolding of RIM for abusing the patent system as I have of its opponents. I think that RIM got a good lesson, in that they were the ones who started off the big mess by suing everyone for patents in the first place.

Angry dude, I have asked you, repeatedly, to stop lying here. I would ask you once again to do so. It really makes you look like a fool

Re: Re: Re: Re: It IS TO Intellectual Property

the PRICE is set by the owner, at least initially, and is subject to negotiation between the seller and the buyer."

And what does the owner base his asking price on? Unless he's an idiot, he checks the housing market. If he doesn't he may set the price too high, and not sell it. If he sets it too low, he will undersell it.

You are promoting theft, plain and simple

Infringement is not theft. That doesn't make it right, but trying to equate the two is misleading and wrong. And Mike has stated that he doesn't support copyright infringement.

How does giving away the digital form of the recordings help them (or their estates for the dead Beatles?)

First, why do the estates of the deceased Beatles deserve to benefit financially from work they did not create? Secondly, Ringo Starr is still making music and touring, and McCartney (although currently concentrating on his divorce) still performs, writes books and paints.

What you are arguing is that intellection work and the fruit, intellectional property, should be pricelss (free) and therefore valueless. This is the ultimate insult to all thinkers and creators -- to say that BY LAW they cannot profit from their work.

You've completely misunderstood his points. Just because something is free does not mean it has no value. Ideas are valuable whether you had to pay for them or not. You are automatically assuming that patents and copyrights are the only source of income for an artist, and you're wrong.

What if the musician has disbanded, or disabled, or dead, or otherwise not performing? Suppose it's a reproduction of a one-of-a-kind, such as a painting or a sculpture? You have turned your original essay into a provocation for piracy, which I find absolutely reprehensible.

This is simply a laughable argument. If the musician has either been disabled or decided to stop creating music, then obviously he would find another way to support himself. They could still use their music to assist in promoting their new endeavors. And while this is a bit morbid....if they're dead they don't need the money - the purpose of copyright is not to create a welfare system for others.

Suppose you tell your employer that you are willing to work for free, that you expect no return for your efforts, because that is EXACTLY the model you have just described.

You have a stunningly complete lack of comprehension. The work is a scarce resource, but the end result may or may not be. Therefore, you deserve to be paid for performing the work. The price of the product produced by the work is determined by the market. What Mike is describing is the basic market force of an infinitely available product's price naturally going to zero. He's also saying that instead of trying to fight that phenomena by introducing artificial controls, it should be embraced and used to increase the sales of scarce resources.

: Re: Re: It IS TO Intellectual Property

> And what does the owner base his asking price on?
> Unless he's an idiot, he checks the housing market.

Hopefully there is a rational relationship between cost, price (market value), and perceived value. The reason that we have a housing glut (i.e., houses not selling) is because the buyers are not willing to pay the price set by the sellers. When the price falls, buyers will buy. Of course, the sellers may not recover their costs, but that's a different issue. It's certainly possible to sink more cost into a product than the market value justifies.

> Infringement is not theft.

It's not? You have a funny (mis)conception of theft. Infringement is appropriation of the commercial value of something against the rights of the owner. If I publish a book and you make copies and sell them without paying me a royalty, that's theft.

> How does giving away the digital form of the
> recordings help them (or their estates for the
> dead Beatles?)

You must be kidding?! The estates of the dead stand in the same position as the living. On my death, the property that I owned in life will be owned by my estate.

> First, why do the estates of the deceased Beatles
> deserve to benefit financially from work they did
> not create?

It's called inheritance. The heirs of a person are entitled to his estate. Seems like you should know this, but maybe not.

> You've completely misunderstood his points. Just
> because something is free does not mean it has no
> value.

Confusion of terms. Do you speak of 'value' meaning the value of the item to the owner? Or the 'value' of the item according to the market? These are two different concepts. If an item is 'free' in the sense that the price is zero, it has no value to the owner but may have great value to those who wish to acquire it.

> Ideas are valuable whether you had to pay for them or not.

Confusion of terms. If they are 'free' they have (by definition) zero value.

> You are automatically assuming that patents and
> copyrights are the only source of income for an
> artist, and you're wrong.

What about a manufacturer that derives its sole income from the manufacture of a patented item, or an owner that derives his sole income from the license of patents or copyrighted works? In some cases IP is not the only source of income, but in other cases it is.

>> What if the musician has disbanded, or disabled,
>> or dead, or otherwise not performing? Suppose
>> it's a reproduction of a one-of-a-kind, such
>> as a painting or a sculpture? You have turned
>> your original essay into a provocation for piracy,
>> which I find absolutely reprehensible.

> This is simply a laughable argument. If the musician
> has either been disabled or decided to stop
> creating music, then obviously he would find
> another way to support himself. They could still
> use their music to assist in promoting their
> new endeavors. And while this is a bit
> morbid....if they're dead they don't need the money
> - the purpose of copyright is not to create a
> welfare system for others.

What's laughable about a person receiving income as a result of his work? Once a composer is finished with a composotion or an inventor is finished with his invention, why shouldn't they be able to derive an income from their work? Why should others who had absolutely no hand in the composition or invention profit at the expense of the composer and inventor?

>> Suppose you tell your employer that you are willing
>> to work for free, that you expect no return for
>> your efforts, because that is EXACTLY the model you
>> have just described.

> You have a stunningly complete lack of comprehension.

Thank you.

> The work is a scarce resource, but the end result may
> or may not be. Therefore, you deserve to be paid
> for performing the work. The price of the product
> produced by the work is determined by the market.
> What Mike is describing is the basic market force
> of an infinitely available product's price naturally
> going to zero.

And I am saying that it is right and just for the producer to control the availability of the product in order to derive a return for his effort. Why doesn't John Grisham have an infinite number of copies of 'The Broker' printed and give them away, or allow the PDF to be freely downloaded? (As I have previously noted that Seibel and Lamkins have done.) It's because John Grisham writes for a living, he produces novels for his livlihood, and your suggestion would deprive him of his living (and probably of the world of his yarns).

> He's also saying that instead of trying to fight
> that phenomena by introducing artificial controls,
> it should be embraced and used to increase the
> sales of scarce resources.

In the case of John Grisham, what would that be? In the case of an inventor, what would that be? In the case of a designer with a valuable brand, what would that be?

In some cases, giving away the product will create a demand for another product, as the McAfee (virus updates) or MySQL (paid support) business models. In some cases, it won't, as in the case of a writer (John Grisham) or a designer (Goeffery Beane) or an inventor.

I find the suggestion that producers of intellectual goods be denied the ability to earn from their labor incomprehensible. Show me how holders of copyrights, patents, and trademarks can benefit from the free distribution of their work, and I might agree with you. But you can't, so I won't.

Re: : Re: Re: It IS TO Intellectual Property

It's not? You have a funny (mis)conception of theft. Infringement is appropriation of the commercial value of something against the rights of the owner.

Actually, I have a perfectly realistic view of theft. If I download an MP3 of a song without paying for it, I have violated copyright, but I haven't stolen anything. That doesn't make it right, but it does mean it isn't theft. The owner hasn't lost anything - you can't even argue that they lost the cost of the song, since there's no guarantee that I would have ever purchased the song. Theft involves a loss of property, infringement is a violation of rights. There is a difference, even if you refuse to recognize it.

If an item is 'free' in the sense that the price is zero, it has no value to the owner but may have great value to those who wish to acquire it.

You have some very *cough* interesting definitions... I can acquire water for free, making me the owner of said water. By virtue of it being free, the water then has no value? I can't live without it, so the presumption that it has no value to the owner is false.

It's called inheritance. The heirs of a person are entitled to his estate. Seems like you should know this, but maybe not.

The sole purpose of copyright is to encourage innovation and the development of the works protected by copyright. And, to quote you, "Why should others who had absolutely no hand in the composition or invention profit at the expense of the composer and inventor?".

What's laughable about a person receiving income as a result of his work? Once a composer is finished with a composotion or an inventor is finished with his invention, why shouldn't they be able to derive an income from their work?

You need to reread my previous post. I specifically stated that a person DOES deserve to be paid for his work. The product or result of that work, however, may or may not merit payment, depending on scarcity, demand, and other market factors. You are also once again incorrectly assuming that copyright provides the only source of income.

Thank you.

Your welcome.

It's because John Grisham writes for a living, he produces novels for his livlihood, and your suggestion would deprive him of his living

I am not against the principle of copyrights. I am against the current implementation of copyrights, which serves to stagnate innovation. The duration is too long, and owners of copyright seem to think that fair use does not exist. That being said, Grisham deserves to be paid for writing the book, since the work is a scarce resource. Also, if we had a reasonable length on copyright, he would deserve royalties for the duration. Giving away an ebook, however, is a different case. The ebook's availability is infinite, and therefore the price would naturally be zero.

I find the suggestion that producers of intellectual goods be denied the ability to earn from their labor incomprehensible

Except that's not what is being suggested. You are continually assuming that copyright creates the only incentive for creation, which is adamantly false. You also incorrectly assume that copyright is the only method of securing an income from created works, which is also false.

Show me how holders of copyrights, patents, and trademarks can benefit from the free distribution of their work, and I might agree with you

You're joking, right? Let's see...Radiohead allowed users to pay whatever they wanted for digital downloads of In Rainbows, yet were able to make money. Trent Reznor of Nine Inch Nails is offering the first nine tracks of his current album for free online, which drove traffic to his site, allowing him to sell out of the $300 limited edition version. If you want an example involving books, John Scalzi's book "Old Man’s War" was recently given away for free by Tor, which increased demand for the paperbacks. In each case, using infinitely available resources to increase sales of scarce resources.

But you can't, so I won't.

In other words, you are stating that you're close minded to new ideas pertaining to marketing and business models, and that no evidence to the contrary will ever convince you. In that case, I would ask why you're bothering to contribute to the discussion.

Re: It IS TO Intellectual Property

> Actually, I have a perfectly realistic view of theft.
> If I download an MP3 of a song without paying for it,
> I have violated copyright, but I haven't stolen
> anything.

You have if you derive commercial benefit from your download, e.g., sell it and keep the proceeds of the sale. Additionally, if you download the song against the performer's express intent to preserve to hemself the exclusive right of distribution, you have committed theft.

> That doesn't make it right, but it does mean it
> isn't theft. The owner hasn't lost anything - you
> can't even argue that they lost the cost of the
> song, since there's no guarantee that I would have
> ever purchased the song.

Think again. You have taken something of value without permission (assuming you don't have permission.) That's the very definition of theft.

> Theft involves a loss of property, infringement
> is a violation of rights. There is a difference,
> even if you refuse to recognize it.

'Property' is not a thing but a collection of legal rights. Look up the word in the dictionary. 'Theft' is an infringement of the owner's rights in 'property.'

> I can acquire water for free, making me the owner
> of said water. By virtue of it being free, the water
> then has no value? I can't live without it, so
> the presumption that it has no value to the owner
> is false.

Depends on how you acquire it. If from a source on your property you are correct. If you bypass the water meter or shoplift the water from a store, you have committed theft.

> The sole purpose of copyright is to encourage
> innovation and the development of the works
> protected by copyright.

I think you are referring to patents. Copyright was never meant to encourage innovation.

> You need to reread my previous post. I specifically
> stated that a person DOES deserve to be paid for his
> work. The product or result of that work, however,
> may or may not merit payment, depending on
> scarcity, demand, and other market factors. You are also > once again incorrectly assuming that copyright
> provides the only source of income.

What about trademarks or patents? The owner of a trademark has the EXCLUSIVE right to the mark and can prevent others from using it forever. The owner of a patent also has the EXCLUSIVE rights to the invention for a period of time. The author, composer, or artist also has EXCLUSIVE rights to his work, and for original works or limited editions, the point IS scarcity. A performer has the EXCLUSIVE right to control his performance, and if you violate his right by distributing his performance without his permission you are liable for the consequences of your actions.

> I am not against the principle of copyrights. I am
> against the current implementation of copyrights,
> which serves to stagnate innovation.

I think you mean patents. Copyright has nothing to do with innovation, but the protection of literary or artistic work.

>> I find the suggestion that producers of
>> intellectual goods be denied the ability to earn
>> from their labor incomprehensible.

> Except that's not what is being suggested. You
> are continually assuming that copyright creates
> the only incentive for creation, which is adamantly
> false. You also incorrectly assume that copyright is
> the only method of securing an income from created
> works, which is also false.

Again, what about patents and trademarks? You seem to focus on copyrights, and that's only a part of the discussion.

>> Show me how holders of copyrights, patents, and
>> trademarks can benefit from the free distribution of
>> their work, and I might agree with you

> You're joking, right?

No, I'm not joking, and your examples don't do the job.

> Let's see...Radiohead allowed users to pay whatever
> they wanted for digital downloads of In Rainbows, yet
> were able to make money. Trent Reznor of Nine Inch
> Nails is offering the first nine tracks of his
> current album for free online, which drove traffic
> to his site, allowing him to sell out of the $300
> limited edition version. If you want an example
> involving books, John Scalzi's book "Old Man’s War"
> was recently given away for free by Tor, which
> increased demand for the paperbacks. In each case,
> using infinitely available resources to increase
> sales of scarce resources.

In each of these cases, the freebie was connected with some perceived benefit for the owner, which wasn't the question in the CONTEXT in which it was asked. The CONTEXT is that IP isn't property, that is, artists, inventors, and brandholders shouldn't be allowed to profit from their work -- this was pretty explicit in this thread. Again, show how the producers can benefit from their work if they cannot derive a return from their work. This is the question.

> In other words, you are stating that you're close
> minded to new ideas pertaining to marketing and
> business models, and that no evidence to the contrary
> will ever convince you. In that case, I would ask
> why you're bothering to contribute to the discussion.

No. I'm just pointing out that intellectual workers are entitled to earn a living from their work, just like assembly line workers. Giving away stuff can create markets, this was demonstrated by the radio and TV industries, even by the razor blade and cigarette manufactures 100 years ago.

If someone can come up with a successful business model which is new, and make money from it, that's great. Stealing someone else's property isn't a new business model. Even if the product (e.g. a digital download) cost nothing to make and is a virtually infinite supply, if you take something without paying for it, that is, it's not being given away, you have committed theft, and you belong in jail. No amount of rationalization on your part can change this simple fact.

Re: Re: It IS TO Intellectual Property

Charles. You are simply incorrect. You are wrong on the difference between theft and infringement, as even the Supreme Court has noted. I can't believe I need to repeat this, as I just pointed it out a few comments ago, but even the Supreme Court recognizes the difference. Infringement is not theft. Period.

A performer has the EXCLUSIVE right to control his performance, and if you violate his right by distributing his performance without his permission you are liable for the consequences of your actions.

Yes, for infringement. No one denies this point.

But you totally ignored Dan's actual point. He said that that exclusive right was NOT the only way that the IP holder could make money. You continue to insist it is. And you are wrong.

I think you are referring to patents. Copyright was never meant to encourage innovation.

Again, you are wrong. Both patents and copyrights are to "promote the progress." They both stem from the same constitutional clause, and both are focused on innovation. But, nice try rewriting history.

In each of these cases, the freebie was connected with some perceived benefit for the owner, which wasn't the question in the CONTEXT in which it was asked. The CONTEXT is that IP isn't property, that is, artists, inventors, and brandholders shouldn't be allowed to profit from their work -- this was pretty explicit in this thread. Again, show how the producers can benefit from their work if they cannot derive a return from their work. This is the question.

You seem to have totally misinterpreted what both Dan and I said and then used that to set us up to defend something neither of us said. We did not say that you shouldn't be allowed to profit from their works. If you think we said that explicitly somewhere, you are wrong. Please point that out.

What we said, quite clearly, is that creators should benefit from their works in using those works to make other, scarce, goods more valuable and selling those scarce goods.

That's exactly the examples that Dan (and I) have produced.

For you to then say they don't count, when they show exactly what we say has me questioning what you think we're saying.

Again, show how the producers can benefit from their work if they cannot derive a return from their work.

But we never said they cannot derive a return from their work. If you reduce your statement above down to the tautology that you're stating it's: "Show how someone can make money if they can't make money." The problem is we never said they can't make money. We're saying they make money in a DIFFERENT way than by using a gov't granted monopoly.

This is not difficult.

No. I'm just pointing out that intellectual workers are entitled to earn a living from their work, just like assembly line workers.

Which is what we have said. Why do you think we have said something different?

Giving away stuff can create markets, this was demonstrated by the radio and TV industries, even by the razor blade and cigarette manufactures 100 years ago.

Right. That supports our point.

If someone can come up with a successful business model which is new, and make money from it, that's great.

Right. And all we've done is explain how that business model works.

Stealing someone else's property isn't a new business model.

Nor have we suggested it is. Again, we have never, not once, said it is okay to infringe. Why you continue to insist that we have only makes you look like you cannot comprehend basic english.

Even if the product (e.g. a digital download) cost nothing to make and is a virtually infinite supply, if you take something without paying for it, that is, it's not being given away, you have committed theft, and you belong in jail.

First of all, we have never said that it is okay to take something without paying for it if the creator did not give permission for it, so you're barking up the wrong tree (again).

But, even if that does happen, it is not theft. It is infringement. And you do not belong in jail for it, because it is a civil offense, meaning you can be fined, but not jailed.

But thanks for playing.

No amount of rationalization on your part can change this simple fact.

Other than reality, of course. So far, you have shown that you do not understand economics, you do not understand what we have said and you do not understand the law.

Re: Re: Re: It IS TO Intellectual Property

I am now on my employer's clock, so I really will try to be brief.

The context of this discussion is your claim that IP isn't 'property.' As I understand 'property' it is the foundation for the protection of rights and the basis for markets. The concept of 'property' isn't static, as for example in history human beings were considered 'property' (chattel slavery) and ideas were not considered 'property' (hence the protection for inventions and art). By denying that ideas are 'property' you are accurate in a historical sense and also within your right to advocacy. My point is that, in this day and age when much value consists of ideas, that the legal concept of IP is necessary to validate and protect the labor of those who produce ideas. If you agree, then the discussion is over, but then you are forced to conclude that intellectional property is very much 'property' with respect to which the law can recognize ownership and punish those who act in derogation of ownership rights.

> Charles. You are simply incorrect. You are wrong on
> the difference between theft and infringement

'Theft' is taking something that doesn't belong to you. If you deprive an owner of intellectual property the opportunity to derive income from an idea, you may have infringed against his ownership, but you ALSO have stolen this opportunity from him. Period.

> But you totally ignored Dan's actual point. He said
> that that exclusive right was NOT the only way that
> the IP holder could make money. You continue to insist
> it is. And you are wrong.

Dosn't matter. If there are one thousands to make money, and you take even one, you still have taken one.

> You seem to have totally misinterpreted what both Dan
> and I said and then used that to set us up to
> defend something neither of us said. We did not say
> that you shouldn't be allowed to profit from their
> works. If you think we said that explicitly somewhere,
> you are wrong. Please point that out.

What you said was that intellectual property is not 'property.' Put a little more precisely, you have denied that a creator, thinker, artist, inventor, etc., should have legally cognizable and enforceable rights to ideas. Again, if you concede that it is socially useful to grant intellectual workers rights in their work product, we can agree and the discussion will be at an end.

> What we said, quite clearly, is that creators
> should benefit from their works in using those works
> to make other, scarce, goods more valuable and
> selling those scarce goods.

... by the express mechanism of denying the ability to protect their property interests from misappropriation by others. Yes, this is quite clear, and unconscionable.

> That's exactly the examples that Dan (and I)
> have produced.

Quite selective. You can always come up with exceptions. What about the general rule?

> But we never said they cannot derive a return from
> their work. ... We're saying they make money in
> a DIFFERENT way than by using a gov't granted monopoly.

... i.e., by being denied the exclusive right to use their work in the way they think best. You either grant them exclusive rights, or you don't. If you don't grant them exclusive rights, then you have just opened the door for others, who had no part in the creative activity, to profit from their labor. In a word, this is called theft, just as if I robbed you at gunpoint -- I am taking money that you worked to earn and that I did not work to earn.

>> Stealing someone else's property isn't a new
>> business model.

> Nor have we suggested it is. Again, we have never,
> not once, said it is okay to infringe.

No, all you said is that the work isn't 'property.' If ideas are not 'property' then they can be used by anyone for any purpose. That is, you produce Grisham's novels, or the Beatles songs, or Microsoft's operating system, and you don't owe a dime, not even a cent, to those who labored to produce the product. You didn't ~suggest~ it, you made it explicit!

> First of all, we have never said that it is okay to
> take something without paying for it if the creator
> did not give permission for it, so you're barking up
> the wrong tree (again).

Okay, then it ~is~ property, and you were wrong when you said that it wasn't.

> But, even if that does happen, it is not theft.

No? Funny, people go to jail all the time for 'stealing' intellectual property. In my city a few months ago, a couple of dozen people were sentenced in federal court - they were caught in a sting selling counterfeit goods, including DVDs, CDs, luggage and handbags, and a host of other goods. If it's theft to manufacture a CD and sell it as a physical object (without paying the copyholder for the rights) why is it not a crime to do the same over a network by little electronic bits?

> Other than reality, of course. So far, you have shown
> that you do not understand economics, you do
> not understand what we have said and you do not
> understand the law.

That's a laugh. You have said that owners can dictate the value of their property and that markets set prices, and other assorted nonsense.

Re: Re: Re: Re: It IS TO Intellectual Property

Re: Re: It IS TO Intellectual Property

You have taken something of value without permission (assuming you don't have permission.) That's the very definition of theft.

No, that's your definition of theft. I prefer the more accurate version myself (from Miriam-Webster): "the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it." Infringement does not involve the removal of property, it involves the violation of the rights associated with said property.

Depends on how you acquire it. If from a source on your property you are correct.

In other words, you agree that just because something is free does not mean it has no value. Thank you.

I think you mean patents. Copyright has nothing to do with innovation, but the protection of literary or artistic work.

The Copyright Clause in the U.S. Constitution states: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In other words, the purpose of copyright is to encourage an artist to create further works, ie. introduce new ideas. The definition of innovation is "the introduction of something new", so I will stand by my original statement. The protection of the work is a method, not the intent.

The owner of a trademark has the EXCLUSIVE right to the mark and can prevent others from using it forever.

The purpose of trademark is consumer protection. And the rights associated with a trademark only apply withing a defined market. That isn't to say it isn't abused, as in the case of the NFL.

the freebie was connected with some perceived benefit for the owner, which wasn't the question in the CONTEXT in which it was asked. The CONTEXT is that IP isn't property, that is, artists, inventors, and brandholders shouldn't be allowed to profit from their work -- this was pretty explicit in this thread. Again, show how the producers can benefit from their work if they cannot derive a return from their work. This is the question.

No, that isn't the question. It's your straw man argument based on false assumptions. Obviously artists, inventors, companies, etc. can benefit from their work regardless of copyright or patents, and have been doing so for years. As previously stated, copyright is only one source of income. It is not the only source.

No. I'm just pointing out that intellectual workers are entitled to earn a living from their work

Except that wasn't what you said. You specifically asked for examples of artists or inventors benefiting from the free distribution of their work. You then said I couldn't, so you would discount my argument. I provided examples where the artists did benefit from the free distribution of their work, and you still discounted it.

Stealing someone else's property isn't a new business model.

I love that you keep jumping to these wonderfully illogical conclusions. Again, no one is putting forth infringement as a business model. You are putting forth straw man arguments.

Even if the product (e.g. a digital download) cost nothing to make and is a virtually infinite supply, if you take something without paying for it, that is, it's not being given away, you have committed theft, and you belong in jail. No amount of rationalization on your part can change this simple fact.

...sigh...really? You're going to resort to the tired "you just want something for nothing" accusation too? Again, another false assumption. Again, I'm not advocating illegal activity, and therefore I don't need to rationalize it. If you want to argue against basic economic forces, be my guest.

Re: : Re: Re: It IS TO Intellectual Property

> Infringement is not theft.

It's not? You have a funny (mis)conception of theft. Infringement is appropriation of the commercial value of something against the rights of the owner. If I publish a book and you make copies and sell them without paying me a royalty, that's theft.

Charles, I'm afraid it's you who has a funny misconception of theft. What you discuss is infringement, which is illegal, but it's not theft. In theft, the original owner is no longer in possession of the good. That is not the case in infringement. Note the Supreme Court quote that I put forth above.

Infringement is not theft. Copyright is not property. There are important differences. That is what we are trying to highlight.

You must be kidding?! The estates of the dead stand in the same position as the living. On my death, the property that I owned in life will be owned by my estate.

Yes, if it were property. But the estates of the dead do not stand to continue receiving *income* for someone no longer working. That is what you are asking for. Again, I ask you how much money are you now receiving from your father's employer in 1960 for the work he did that year?

Confusion of terms. If they are 'free' they have (by definition) zero value.

The only one confused here is you. Price and value are separate. To conflate the two only highlights your own trouble in understanding basic economic facts.

What about a manufacturer that derives its sole income from the manufacture of a patented item, or an owner that derives his sole income from the license of patents or copyrighted works? In some cases IP is not the only source of income, but in other cases it is.

That's like the sugar monopolist in the 1600s demanding he retain a monopoly on sugar, since it's from that monopoly that he makes his money. Just because that's how you make your money in the absence of competition doesn't mean that's how you make your money going forward. In fact, as we've seen, competition drives innovation leading to many more ways to make money.

What's laughable about a person receiving income as a result of his work? Once a composer is finished with a composotion or an inventor is finished with his invention, why shouldn't they be able to derive an income from their work?

They should. And, in fact, we are giving them a business model by which they can. Why you think that what we're saying is taking away their ability to make money is beyond me. It's not. We're showing them how they can make more money.

And I am saying that it is right and just for the producer to control the availability of the product in order to derive a return for his effort. Why doesn't John Grisham have an infinite number of copies of 'The Broker' printed and give them away, or allow the PDF to be freely downloaded? (As I have previously noted that Seibel and Lamkins have done.) It's because John Grisham writes for a living, he produces novels for his livlihood, and your suggestion would deprive him of his living (and probably of the world of his yarns).

Oh, right. Just like Paulo Coehlo? Just like John Scalzi? Just like Cory Doctorow? These are all authors who write for a living, and produce novels for their livelihood -- and all happily, gleefully give away electronic copies of their novels for free -- and all found that it does the opposite of "depriving" them of their living -- it has helped to enhance their ability to make money, in rather dramatic ways.

And the list goes on from there. That's merely 3 small examples that we've talked about in just the last few months. If you go back over the archives of Techdirt, you'll find many more like them.

In the case of John Grisham, what would that be? In the case of an inventor, what would that be? In the case of a designer with a valuable brand, what would that be?

As I have made clear, every infinite good will make certain scarce goods more valuable. Your inability to understand that concept or be creative enough to figure out which scarce goods become more valuable doesn't change that fact.

In the case of Grisham it is still the scarce book. But it's also his ability to write future books, or write a movie, or give a talk, or write a column. His time is still scarce and people will pay for it.

In the case of an inventor, it is (obviously) the product he invents which he can sell in the marketplace.

In the case of a designer, it is that very brand that you discuss. That brand is valuable and the ability to sell products with that brand on it is where the livelihood comes from.

I find the suggestion that producers of intellectual goods be denied the ability to earn from their labor incomprehensible.

As do we. I have never once said that the producers of intellectual "goods" should be "denied" the ability to earn from their labor. It is only your misinterpretation of what I write that makes you think I've said that.

Maybe it's time for you to go back and read what I actually write before you make yourself look even more foolish.

Show me how holders of copyrights, patents, and trademarks can benefit from the free distribution of their work, and I might agree with you. But you can't, so I won't.

For over a decade I've been pointing out example after example after example. I'll chalk up your insistence that we cannot to ignorance, but I'd suggest you learn to use a search engine (there's one from a company called Google that has learned to build a tremendously profitable business by giving away the core service entirely for free... but, obviously, you shouldn't use that since it would disprove your thesis that holders of intellectual goods cannot benefit from the free distribution of their works).

Re: Re: Re: Re: It IS TO Intellectual Property

In what? Considering that you have shown that you do not even understand the most basic economic concepts, I hardly find you qualified to grade me...

The VALUE is set by the market

The price is set by the market, but good try.

The value is a subjective point in the individual demand curve for each individual.

The owner has very little to do with controlling the value

You can't be serious.

except in cases of monopoly which is why we generally disfavor them.

Yes, we disfavor monopolies -- but it has nothing to do with the fact that the supplier can establish the value. It's because it interferes with an efficient market, meaning that the price (not value) is higher than is efficient for society.

In the meantime, if you agree that monopolies are bad, why are you in favor of copyright and patents, which are monopolies?

OTOH, the PRICE is set by the owner, at least initially, and is subject to negotiation between the seller and the buyer.

The price is set by the market.

Once again, I suggest you read a basic economics textbook. Otherwise this conversation will go around and around until you learn what these terms mean. You can continue to be ignorant, wrong and stubborn if you like, but it does not make you any more convincing.

True in some cases but not others. Do you think that Microsoft would see an increase in demand for XP or Vista if it gave XP or Vista away for free? I don't think so.

I can't believe you said this. YES, Microsoft would see a TREMENDOUS increase in demand for XP and Vista if it gave them away for free. I'm reaching the point where it's difficult to take you seriously. In what world would freeing these products not increase demand for them?

Actually, the ideas were exactly what I acquired, not the physical objects, although the the physical objects contained the ideas.

That is false. You bought the books, which were made more valuable by the ideas. But the ideas could have been acquired for free as well.

In fact, two of the products, Seibel and Lamkins, are available for free, but I chose to purchase the books in large part to encourse these men by financial reward.

And that's your decision. There's nothing wrong with that.

I 'own' both soft and hard copies of Lamkins and Seibel, but that doesn't prove your point, as the purpose of these authors isn't to sell books but to promote Lisp. This was THEIR decision, not mine.

Again, there's nothing wrong with that, but it does prove my point quite nicely. Lamkins and Seibel have realized that there are advantage to giving away the ideas for free, showing that there are other benefits to doing so.

No? You are promoting theft, plain and simple

I am not, in any way, promoting theft. That is an outright lie.

First off, I am not promoting anything from the end-user perspective. I am merely suggesting that content creators learn that it is to their OWN economic benefit to give away infinite goods.

Second, there is no "theft" involved. It is infringement, which I agree is illegal and I do not promote it in the slightest.

As I have done before, I will quote Justice Blackmon noting that infringement is not theft:

"Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud."

How in the h**l does a free, infinite supply insure a return to the performer?

First of all, there is no way to ensure a return to the performer today in the past or in the future. To claim that copyright does that is false. We live in a capitalistic free market society, where you only have the right to TRY to get a return, not to get one. Do you really think otherwise?

However, in the world of infinite supply, as I have made clear (how many times must I repeat this?), every infinite good will, by its very nature, make other scarce goods more valuable. So the way you make money is to use those infinite goods to make the scarce goods more valuable and you sell those scarce goods. It's as simple as that.

In some cases, it increases demand, while in others it won't.

Demand for what? Giving away an infinite good will always increase the demand for some other scarce good. That's not a point up for debate, no matter how much you think it is. It's a fact of nature.

Example: recordings of the Beatles. Since they cannot perform in person, the only income they derive is from selling their recordings. How does giving away the digital form of the recordings help them (or their estates for the dead Beatles?)

Two of the four Beatles are still around and performing -- and doing quite well. The more popular the Beatles are, the more popular both Paul and Ringo are. As for George and John, the more popular the Beatles are, the more in demand scarce goods relating to the two of them are. Yoko Ono has made a career on being John's widow. His popularity helped make her works valuable.

As for the idea that the Beatle's works now need to support their estates now that they're dead, can I ask you how much money you still make from the work your father did in 1960?

What you are arguing is that intellection work and the fruit, intellectional property, should be pricelss (free) and therefore valueless.

Again, your inability to understand the difference between price and value makes this conversation difficult. Something that is free still has tremendous value to some.

This is the ultimate insult to all thinkers and creators -- to say that BY LAW they cannot profit from their work.

Not at all. Again, please DROP the INCORRECT statement that they cannot profit from their works. I am saying the opposite. I am saying they can profit GREATLY by using those works to make things that they sell much more valuable.

It is not an insult. It is showing them how to make better use of their own work.

What if the musician has disbanded, or disabled, or dead, or otherwise not performing?

What if a factory work is disabled dead or otherwise not working?

Suppose it's a reproduction of a one-of-a-kind, such as a painting or a sculpture?

That's a scarce good.

You have turned your original essay into a provocation for piracy, which I find absolutely reprehensible.

Again, not at all. You seem to have trouble comprehending what seems like it ought to be a very simple concept. I am NOT talking about this from the point of view of the consumer, but from the point of view of the creator of the content in terms of how they can best monetize their works. How you can claim that's a provocation for piracy is close to incomprehensible, but speaks to your own reading comprehension skills.

Nowhere do I say that it is okay to infringe on someone else's copyright. I am saying that from the point of view of the creator of the works, it is BETTER for them to ignore the copyright that the gov't grants them and to make use of better business models for monetization. I am also saying that as more content creators recognize this, then those who choose not to will find the market collapse for their attempts to artificially use scarcity.

Suppose you tell your employer that you are willing to work for free, that you expect no return for your efforts, because that is EXACTLY the model you have just described.

Not at all. My time is a scarce product, as is yours. You charge for scarcity. You give away what's infinite. So, no my model does not say that at all. For you to have read this far and still think that suggests you really need to start reading a little more carefully.

Please understand the difference between scarce goods and infinite goods, and learn your basic economics. It'll help this conversation actually be worthwhile.

Re: Re: It IS TOO Intellectual Property

>> You get a zero, bub.

> In what?

You said, and I quote:
>>>> However to say that the builder cannot raise the
>>>> "value" is incorrect. The value is not set by
>>>> the market, the price is.

The 'value' is determined by the market. A million dollar house (cost-wise) in a slum wouldn't be worth nearly as much as the same house surrounded by five million dollar homes. Likewise, the 'price' is not set by the market but by the owner or by and agreement between the buyer and seller. Wrong on both counts, which is a zero.

>> The owner has very little to do with
>> controlling the value

> You can't be serious.

I'm dead serious, at least when it comes to market value. The only way the owner can control the value is when he controls the market.

> Yes, we disfavor monopolies -- but it has nothing
> to do with the fact that the supplier can establish
> the value. It's because it interferes with an
> efficient market, meaning that the price (not value)
> is higher than is efficient for society.

Except for so-called natural monopolies, such as utilities.

> The price is set by the market.
> Once again, I suggest you read a basic economics textbook.

It's you that needs remedial economics. Prices are initially set by the seller and negotiated between sellers and buyers.

> I can't believe you said this. YES, Microsoft would
> see a TREMENDOUS increase in demand for XP and Vista
> if it gave them away for free. I'm reaching the
> point where it's difficult to take you seriously. In
> what world would freeing these products not
> increase demand for them?

You our simply out of your effing mind and I am beginning to doubt the wisdom of continuing this discussing. If you set two identical products side by side, say WinXP, one with a PRICE of $0.00 and the other with a PRICE of $399.00, and people could either pay $0 or $399, you think that people would choose to pay $399? Man, you must have gotten drool on your IQ test. People will not pay for a product they could get for free. The market for WinXP would absolutely evaporate instantly. In fact, Microsoft claims that its biggest competitor is pirated and unlicensed MS software, proving this point that people will not pay for something they could get for free. ['Market' means a marketplace where exchanges are made, a place where no exchange is made, i.e., where you give away goods, is not a market.]

>> Actually, the ideas were exactly what I acquired,

> That is false. You bought the books, which were made
> more valuable by the ideas. But the ideas could have
> been acquired for free as well.

In point of fact, when you buy books, you purchase the ideas, not the paper and ink. Okay, if you buy a diary with blank pages you purchase the physical paper, but the book does not contain any ideas. It's the CONTENT of the book that sets it apart and makes it valuable, not the paper and ink.

> I am not, in any way, promoting theft. That is an
> outright lie.

> First off, I am not promoting anything from the
> end-user perspective. I am merely suggesting that
> content creators learn that it is to their OWN
> economic benefit to give away infinite goods.

That is not the position you took at the beginning, when you claimed that IP is not property. It's fair to change your mind during the course of a discussion, but it's not fair to change your mind and claim that you haven't. You can suggest that content creators learn to give away their content, but to compel them to do so ~is~ theft -- theft of their work product, their creativity and imagination, and their time and labor. Strictly from a legal standpoint, the only way to protect the content is to grant the creators property interests in their work, which is exactly what IP does.

> Second, there is no "theft" involved. It is
> infringement, which I agree is illegal and I do
> not promote it in the slightest.

I wrote a book, published it, and had it distributed through retail outlets. It was a very small book -- it contained arrangements of tunes, all of which were more than 150 years old. I derived some small income from this book. One day my distributor called me and told me that someone was selling photocopies of my book on eBay. I checked, and sure enough, he had made copies of my book and was selling them on eBay, without my permission and without sharing any revenue with me. He was a thief, and what he stole was the income that I would have derived from the sale of those books had his buyers purchased them from my distributor rather than from him. Call it infringement if you want, but the prosecuting attorney called it theft. I will defer to the prosecuting attorney.

> As I have done before, I will quote Justice
> Blackmon noting that infringement is not theft:

"Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud."

Which establishes the falsity of your claim that IP isn't property. Surely you won't disagree with Blackmon.

> First of all, there is no way to ensure a return to
> the performer today in the past or in the future. To
> claim that copyright does that is false. We live
> in a capitalistic free market society, where you only
> have the right to TRY to get a return, not to get one.
> Do you really think otherwise?

Laws against murder don't stop people from killing. Do you think we should also repeal the laws against murder?

> However, in the world of infinite supply, as I have
> made clear (how many times must I repeat this?),
> every infinite good will, by its very nature, make
> other scarce goods more valuable. So the way you
> make money is to use those infinite goods to make
> the scarce goods more valuable and you sell those
> scarce goods. It's as simple as that.

Okay. The Levis red tab is an 'infinite supply.' Anyone and everyone can make jeans with a red tab that says 'Levis.' How does this benefit Strauss and Co? What scrace goods become more valuable that Strauss and Co can sell? How can Strauss and Co distinguish its product to buyers who wish to buy a pair of Levis?

> Demand for what? Giving away an infinite good will
> always increase the demand for some other scarce
> good. That's not a point up for debate, no matter
> how much you think it is. It's a fact of nature.

Say I'm John Grisham and I write best selling novels. I can produce an infinite number of copies of each novel I write. How does 'giving away' those copies benefit me? How do I earn my living if I stand on the street corner and pass out free copies of my work? What other 'scarce good' do I have that will increase in value if I give away an infinite number of copies of my novel?

> As for the idea that the Beatle's works now need
> to support their estates now that they're dead, can
> I ask you how much money you still make from the
> work your father did in 1960?

At the moment I am enjoying the benefit of the estate I inherited from him. I wasn't a particularly large estate, but I anticipate that I will pass on some portion to my children on my death and they will also enjoy the benefit of his estate.

> Again, your inability to understand the difference
> between price and value makes this conversation
> difficult. Something that is free still has
> tremendous value to some.

I fully understand the difference between price and value. The reason that an item sells is that the value to the seller is less than the price and the value to the buyer is greater than the price. This is elementary economics. I agree that many things have tremendous value and are free, while other things have no value and are extremely costly, my asbestos laden building being an example. This is not an argument that intellectual work should have no protection by law.

>> This is the ultimate insult to all thinkers and
>> creators -- to say that BY LAW they cannot profit
>> from their work.

> Not at all. Again, please DROP the INCORRECT
> statement that they cannot profit from their works.
> I am saying the opposite. I am saying they can
> profit GREATLY by using those works to make things
> that they sell much more valuable.

This is true in some cases. MySQL and McAfee come to mind. This is NOT true in other cases, as my illustrations of Levis jeans and Grisham novels.

> Again, not at all. You seem to have trouble
> comprehending what seems like it ought to be a very
> simple concept. I am NOT talking about this from the
> point of view of the consumer, but from the point of
> view of the creator of the content in terms of how
> they can best monetize their works. How you can
> claim that's a provocation for piracy is close
> to incomprehensible, but speaks to your own
> reading comprehension skills.

Nice try, bub, but no cigar. The creator should have the CHOICE to either sell or give away his creation. If he wishes to sell it (or try to sell it) and you deny him that choice by declaring that his idea is not ~property~ that he has a legal interest in, and can enforce legal right to, you have stolen his time, creativity, and talent.

> Nowhere do I say that it is okay to infringe on
> someone else's copyright.

Um ... that's EXACTLY what you said. You said, and I quote:
>>>> Continuing my ongoing series of posts on
>>>> "intellectual property," I wanted to discuss
>>>> the phrase itself. It's become common language
>>>> to call it intellectual property, but that
>>>> leads to various problems -- most notably the
>>>> idea that it's just like regular property.
>>>> It's not hard to come up with numerous
>>>> reasons why that's not true, but just the
>>>> word "property" seems to get people tied up.

If an idea isn't property, it isn't protected, and anyone can use it at will. 'Infringement' is misappropriation of another's property interest in intellectual property. If I misappropriate my employer's bank account, I have committed theft. If I misappropriate Levi's trademark, or Grisham's novel, or Misrosoft's software, I have infringed their rights, but let's cut the BS and call it what it is: theft.

> I am saying that from the point of view of the creator
> of the works, it is BETTER for them to ignore
> the copyright that the gov't grants them and to make
> use of better business models for monetization.

What you are saying is that you want to deprive them of their ability to enforce their property rights in their intellectual work product. Why not give them the CHOICE to either ignore their rights or enforce their rights?

The fact that I have a product that can be made infinite, such as a Levis trademark, or a Grisham novel, or a computer operating system, doesn't mean that I will necesssarily benefit from making it infinite. In some cases, as for MySQL and McAfee, yes. In other cases, no. If someone figures out a way to generate revenue by giving stuff away, everyone else will follow suit. The reason that we are even having this discussion in the first place should be evidence enough that no one has figured that out.

Re: Re: Re: It IS TOO Intellectual Property

People will not pay for a product they could get for free.

Demonstratively false. Radiohead allowed for people to pay whatever they wanted for the album, and plenty of people chose to pay. Bottled water is a thriving industry, and there are plenty of people who get their water for free. Various consumer tests have shown that most people can't taste the difference, yet they continue to buy it. People are more than willing to pay for perceived value.

That is not the position you took at the beginning, when you claimed that IP is not property.

This is incorrect. Mike stated, quite clearly, that IP is not actually property but a set of rights. You continue to incorrectly equate this to an advocation of infringement, and the removal of a content producer to make money. Furthermore, he has not made an argument to compel content creators to do anything. Again, quite clearly, he has stated that it makes business sense to offer infinitely available goods at their natural price of $0 in order to drive customers to scarce resources.

It was a very small book -- it contained arrangements of tunes, all of which were more than 150 years old. I derived some small income from this book.

Correct me if I'm wrong, but didn't you just say people wouldn't pay for free things? If the tunes are over 150 years old, they're in the public domain, making them free to the public. Even beyond your book, various publishers make money putting out books that are widely available for free, including the Bible.

Call it infringement if you want, but the prosecuting attorney called it theft. I will defer to the prosecuting attorney.

I have infringed their rights, but let's cut the BS and call it what it is: theft.

As I previously brought to your attention, the Supreme Court of the United States understands the difference between infringement and theft back in 1985. You can defer to your prosecuting attorney, but I think the Supreme Court has a little more legal authority.

Okay. The Levis red tab is an 'infinite supply.' Anyone and everyone can make jeans with a red tab that says 'Levis.'

Trademark exists to protect consumers, while copyrights and patents exist to promote innovation. The Levi Strauss trademark is not a product, which invalidates your example.

This is NOT true in other cases, as my illustrations of Levis jeans and Grisham novels.

So you have evaluated every business model that Grisham can use, and determined that every single one of them relies on copyright in order for him to earn a living? That seems particularly presumptuous of you. Mike has pointed out various examples of how business models other than the current ones can allow a creator to benefit regardless of copyright.

If an idea isn't property, it isn't protected, and anyone can use it at will

This seems to be the crux of the matter. An idea is not property, and cannot be protected. You can, however, protect an expression of an idea with a copyright or patent. A copyright or patent gives you monopoly rights to that expression.

If someone figures out a way to generate revenue by giving stuff away, everyone else will follow suit.

: Re: It IS TOO Intellectual Property

>> People will not pay for a product they could get for free.

> Demonstratively false.

Context, bro', context. I said, put the identical product side by side, one with a price and the other offered for free. The fact that a few people will pay a price doesn't negate the fact that the vast majority will take the free version. How do you think that Walmart puts Main Street under? And Walmart only offers the goods at lower prices, not for free.

> This is incorrect. Mike stated, quite clearly, that IP
> is not actually property but a set of rights.

Actually, no. Let me quote:
"The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. As I've written before, the very purpose of "property" and "property rights" was to better manage allocation of scarce resources. If there's no scarce resource at all, then the whole concept of property no longer makes sense. If a resource is infinite, it no longer matters who owns it, because anyone can own it and it doesn't diminish the ownership of anyone else. So, the entire rationale for "property rights" disappears."
and
"In the end, I don't think that there's really a good answer. I think it makes sense for it to be context specific. Using "intellectual property" too freely is definitely a problem, as it creates a mindset and a framework that isn't accurate for the type of rights provided by patents, copyrights and trademarks. Yet, all of the other options have their own problems as well. I tend to think that whenever possible, it's best to use the specific type being discussed (i.e., patents, copyrights, trademarks, etc.). In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property."

Not a word about a 'set of rights.'

> Correct me if I'm wrong, but didn't you just say people
> wouldn't pay for free things? If the tunes are over 150
> years old, they're in the public domain, making them free
> to the public

Exactly. What they paid for was my arrangement, which wasn't 150 years old.

> Trademark exists to protect consumers, while copyrights and
> patents exist to promote innovation. The Levi Strauss trademark
> is not a product, which invalidates your example.

Eh? My argument was that the trademark was PROPERTY. Let me spell it out for you, p-r-o-p-e-r-t-y, not p-r-o-d-u-c-t. I know that both words begin with 'pro' but they really and truly are different words.

> This seems to be the crux of the matter. An idea is not
> property, and cannot be protected.

See? I told you so. The truth will out. My claim is that we can make ideas property and protect them, same as we made corporations legal entities and ownership rights in corporations property. (Corporations and ownership interests in corporations are entirely fictitious, just like ideas.)

> You can, however, protect an expression of an idea with a
> copyright or patent. A copyright or patent gives you monopoly
> rights to that expression.

Re: : Re: It IS TOO Intellectual Property

The fact that I have a product that can be made infinite, such as a Levis trademark, or a Grisham novel

My argument was that the trademark was PROPERTY. Let me spell it out for you, p-r-o-p-e-r-t-y, not p-r-o-d-u-c-t. I know that both words begin with 'pro' but they really and truly are different words.

Then you should probably use the right word. Besides that, your example concerning Levi Struss still doesn't work. The purpose of a trademark is to protect consumers, not to protect a product or idea.

My claim is that we can make ideas property and protect them

No, you can't. We already went over this. Straight from the U.S. government's copyright office:

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

You can, however, protect an expression of an idea with a copyright or patent. A copyright or patent gives you monopoly rights to that expression

Thank you. I knew that you would come around in the end.

I didn't "come around," I stated a fact. I never said anywhere that this wasn't the case. You misrepresented my position, and used faulty logic in assuming that if IP isn't property, then there is no protection for creators.

The point is, and has always been, that the protection offered by patents and copyrights isn't a requirement to profit from your work. No one is arguing that the protection exists, besides you in your straw man arguments. We are arguing that it isn't necessary.

Mike argues against the term "intellectual property" because it creates the illusion that tangible property and "intellectual property" are equivalent, when they are not, and because you simply cannot own an idea.

Re: Re: Re: It IS TOO Intellectual Property

The 'value' is determined by the market. A million dollar house (cost-wise) in a slum wouldn't be worth nearly as much as the same house surrounded by five million dollar homes. Likewise, the 'price' is not set by the market but by the owner or by and agreement between the buyer and seller. Wrong on both counts, which is a zero.

Charles, I don't know how many times I have to explain this, but you are wrong. If you learned a little basic economics, it would help. Start here:

Price is set by the market. It's the intersection of supply and demand. Your incorrect definitions do not help this conversation.

I'm dead serious, at least when it comes to market value. The only way the owner can control the value is when he controls the market.

You seem to be confusing value with price again. We both agree that the market sets the price. You, unfortunately, seem to think price is market value.

> I can't believe you said this. YES, Microsoft would
> see a TREMENDOUS increase in demand for XP and Vista
> if it gave them away for free. I'm reaching the
> point where it's difficult to take you seriously. In
> what world would freeing these products not
> increase demand for them?

You our simply out of your effing mind and I am beginning to doubt the wisdom of continuing this discussing. If you set two identical products side by side, say WinXP, one with a PRICE of $0.00 and the other with a PRICE of $399.00, and people could either pay $0 or $399, you think that people would choose to pay $399?

Charles, you total ignorance on economics is showing through here. I did not say that people would buy the $399 version. I said DEMAND would increase. You say "the market would evaporate" but that is wrong. A much higher QUANTITY of Microsoft Office would be much greater. You don't seem to know what demand means. Many more people would take the $0 version (though, some might pay $399 if Microsoft provided additional value for doing so, such as customer support). But the DEMAND (meaning the number of copies demanded) would clearly INCREASE. This isn't a point of debate. This is economic fact.

['Market' means a marketplace where exchanges are made, a place where no exchange is made, i.e., where you give away goods, is not a market.]

Not according to economics. Charles, you can't just redefine all economics to try to make your point. It makes you look silly. Giving away goods and services does not evaporate a market. It's a part of the market.

In point of fact, when you buy books, you purchase the ideas, not the paper and ink. Okay, if you buy a diary with blank pages you purchase the physical paper, but the book does not contain any ideas. It's the CONTENT of the book that sets it apart and makes it valuable, not the paper and ink.

That's what I said. It's the content that makes it valuable, but what you are buying is the book. You are proving my point here. The content (the infinite good) makes the book (the scarce good) valuable. Thank you for finally seeing the point.

> First off, I am not promoting anything from the
> end-user perspective. I am merely suggesting that
> content creators learn that it is to their OWN
> economic benefit to give away infinite goods.

That is not the position you took at the beginning, when you claimed that IP is not property. It's fair to change your mind during the course of a discussion, but it's not fair to change your mind and claim that you haven't. You can suggest that content creators learn to give away their content, but to compel them to do so ~is~ theft -- theft of their work product, their creativity and imagination, and their time and labor. Strictly from a legal standpoint, the only way to protect the content is to grant the creators property interests in their work, which is exactly what IP does.

Charles. I give up. You clearly have a near total mental block on what I am trying to say. If you want to live that way, that is your choice.

But I suggest you learn a little economics before you try having this discussion with anyone else. Your attempt to redefine the most basic economic concepts, and your followed confusion over what they mean makes this discussion impossible.

Please go read a basic economics text, and then try to explain what you meant again. I don't know how many ways I can tell you this. You are wrong. And the reason you are wrong is because you do not understand the most basic concepts of economics, and you seem to have a near total blindspot to the idea of how a market works.

I have never, not once, claimed that infringement is okay. I am merely saying that content creators will eventually recognize that using copyright is not necessary to make money.

Infringement is not, has not been and will never be "theft," though it is illegal under current laws. I was not saying that it's not illegal. Do not make up what you wish I said just because you cannot seem to grasp what I am actually saying.

For you to claim otherwise, is mere ignorance.

Okay. The Levis red tab is an 'infinite supply.' Anyone and everyone can make jeans with a red tab that says 'Levis.' How does this benefit Strauss and Co? What scrace goods become more valuable that Strauss and Co can sell? How can Strauss and Co distinguish its product to buyers who wish to buy a pair of Levis?

Trademark is a consumer protection issue, not a property rights one.

Furthermore, as I pointed to earlier, recent studies have shown that the knockoff market actually helps ADVERTISE the brand name market, making it a LARGER market where the brand name can SELL MORE.

The fact that you return to the designer clothing example when the economic studies have shown the result is the exact opposite of what you claim (which I've already pointed out to you) would make me think you would maybe, possibly admit that you were wrong. Apparently not.

Say I'm John Grisham and I write best selling novels. I can produce an infinite number of copies of each novel I write. How does 'giving away' those copies benefit me?

Ask Paulo Coehlo.

At the moment I am enjoying the benefit of the estate I inherited from him. I wasn't a particularly large estate, but I anticipate that I will pass on some portion to my children on my death and they will also enjoy the benefit of his estate.

No, not his property. I'm saying why aren't you still earning money for the WORK he did in 1960.

I fully understand the difference between price and value.

You clearly do not. You said that price is not established by the market and that the seller has no control over value. These are both false.

This is true in some cases. MySQL and McAfee come to mind. This is NOT true in other cases, as my illustrations of Levis jeans and Grisham novels.

It is true in all cases. Any infinite good will impact the value of a scarce good. I have already pointed out, in fact, that it can increase the value of Levis jeans (and does so) and best selling novels (and does so). I have pointed to FACTUAL EVIDENCE that you are wrong in both cases. Will you finally admit that you are wrong?

The creator should have the CHOICE to either sell or give away his creation. If he wishes to sell it (or try to sell it) and you deny him that choice by declaring that his idea is not ~property~ that he has a legal interest in, and can enforce legal right to, you have stolen his time, creativity, and talent.

So, let me ask you this: If you open a restaurant selling pizzas for $10/pie and I open a restaurant next door selling pizzas for $5/pie and now no one will buy your pizzas. Would you claim that I have "denied you the choice" of selling your pizzas at $10? Somehow I think not.

So, let's say that you have a restaurant selling pizzas for $10 and I invent a "replicator" device that lets me make pizzas for free. So I give them out for free. Have I "denied you the choice" of selling your pizzas? Somehow I think not.

That is what I am saying here. If you base your business model on selling things that your competitors will eventually give away for free, you will no longer be able to sell your products.

It's that simple.

If an idea isn't property, it isn't protected, and anyone can use it at will. 'Infringement' is misappropriation of another's property interest in intellectual property. If I misappropriate my employer's bank account, I have committed theft. If I misappropriate Levi's trademark, or Grisham's novel, or Misrosoft's software, I have infringed their rights, but let's cut the BS and call it what it is: theft.

Your attempts at redefining theft notwithstanding, I suggest you learn the difference between scarcity and abundance. Otherwise you continue to look like a fool.

It is not theft.

The fact that I have a product that can be made infinite, such as a Levis trademark, or a Grisham novel, or a computer operating system, doesn't mean that I will necesssarily benefit from making it infinite.

Yes, if you are a fool, you will not benefit from it. I don't deny that there are stupid people out there who will misuse an infinite good and not benefit from it. But, that doesn't mean that you CANNOT benefit from it.

The reason that we are even having this discussion in the first place should be evidence enough that no one has figured that out.

No. It just means that you have not figured it out. We've pointed to plenty of examples, economic evidence and a detailed explanation of why it works.

Charles. This discussion is going nowhere unless you learn a little basic economics. Your inability to grasp concepts as basic as price, value, market, theft and demand make the conversation difficult.

Re: It IS TOO Intellectual Property

Sorry, Mike, but the possible source of the confusion just occurred to me.

We use the word 'property' in two senses. One is to denote a physical object, something tangible as opposed to something intangible. The other is to denote a complex of legal rights. For example, when I say, 'This is my property,' I mean that I possess rights to 'this' that are distinct from your rights.

If I labor to create some intangible, such as a work of art or an invention, it seems to me right and just for society to allow me to exploit my labor and to not allow others to exploit my labor. The fact that my work is intangible, rather than some tangible thing, should have no bearing on my ability to gain some return from my work.

Re: Re: It IS TOO Intellectual Property

Re: Re: It IS TOO Intellectual Property

If I labor to create some intangible, such as a work of art or an invention, it seems to me right and just for society to allow me to exploit my labor and to not allow others to exploit my labor. The fact that my work is intangible, rather than some tangible thing, should have no bearing on my ability to gain some return from my work.

Ok. I see where we disagree. Let me try to explain. I am not saying that you shouldn't have the right to exploit your labor. But I am saying that we should let the market decide how to best price that output. You are saying that the gov't has a societal interest in artificially inflating the price of that output via an artificial scarcity.

If the history of economics has taught us anything, it should be that those artificial limitations on economic resources has terrible economic unintended consequences.

My point (and I believe I've said this multiple times by now) is that by NOT artificially limiting the resource, the laborer will have MORE opportunities to exploit that labor. You insist that they will have fewer, which is why you need the gov't to step in and protect. There is no historical evidence that I know of that supports your position.

So you are incorrect to imply that my position is that you do not deserve to "gain some return from [your] work." I am saying the opposite. I am saying that by ignoring artificial limitations you have MORE opportunities to gain return from your work, and the market will help highlight those opportunities.

So the fundamental misunderstanding is in your belief that in taking away artificial scarcity the right to profit from your work is diminished. It is not. It is enhanced.

Re: It IS TOO Intellectual Property

> Ok. I see where we disagree. Let me try to explain.
> I am not saying that you shouldn't have the right
> to exploit your labor. But I am saying that we should
> let the market decide how to best price that output.

Right!

> You are saying that the gov't has a societal interest
> in artificially inflating the price of that output via
> an artificial scarcity.

No! I'm saying that the INDIVIDUAL (and by extension the society) has an interest in seeing a return on his labor. A workman is worthy of his wages.

> If the history of economics has taught us anything,
> it should be that those artificial limitations on
> economic resources has terrible economic unintended
> consequences.

True, as far as it goes, but the normal expectations for tangible goods does not apply to intangible goods. For example, selling cheap knockoffs of designer handbags has an empirical and detrimental effect on the value of the brand, which is IP, to wit, a trademark. The sellers of the counterfeit goods are stealing from the brand, and they are thieves.

> My point (and I believe I've said this multiple times
> by now) is that by NOT artificially limiting the
> resource, the laborer will have MORE opportunities
> to exploit that labor. You insist that they will
> have fewer, which is why you need the gov't to step
> in and protect. There is no historical evidence
> that I know of that supports your position.

This is so wrong on so many levels that I don't know where to begin. I'll be quick and dirty rather than verbose and precise.
1. The government does not artificially limit the resource, but owner controls the availability of the resource.
2. Generally, the more limited the supply the greater the demand of the resource, giving away the product decreases the demand rather than increasing the demand.
3. Historical evidence abounds if you look at the history of inventions that have reverted to the public domain, as Jefferson himself implied in your quotation.
4. Control of the supply of the product lies with the owner, not the government.

> So you are incorrect to imply that my position is that
> you do not deserve to "gain some return from [your]
> work." I am saying the opposite. I am saying that
> by ignoring artificial limitations you have MORE
> opportunities to gain return from your work, and
> the market will help highlight those opportunities.

Which means that the ~owner~ controls the supply of the product, not the government. All the IP legel regime goes is grant the ~owner~ property rights in the product of his creative imagination. If an artist or inventer thinks his interests are better served by limiting distribution of a product, he or she will do so, not the government.

> So the fundamental misunderstanding is in your belief
> that in taking away artificial scarcity the right
> to profit from your work is diminished. It is not. It
> is enhanced.

This is the result of the management of the property by the owner. Besides which, in the context of digitally distributed goods, like songs and movies, there is no physical constraint to the supply, as there would be for the production of film, tape, vinyl, etc. Digital distribution of a song without charge does not deprive the owner of any physical property interest but deprives him of the intangible thingy of its commercial value. Why buy the milk when you can get it for free?

I think that you are beginning to see the implication of your position that IP is not 'property.' If it isn't property, then we cannot preserve to the artist or inventor the right to income from the thingy. In essence, what this does is bifurcate the property domain into tangible property, which the law protects, and intangible property, which (you believe) the law should not protect. This is, in a word, unjust exploitation of the creative energies of our intellectual workers.

Re: Re: It IS TOO Intellectual Property

> You are saying that the gov't has a societal interest
> in artificially inflating the price of that output via
> an artificial scarcity.

No! I'm saying that the INDIVIDUAL (and by extension the society) has an interest in seeing a return on his labor. A workman is worthy of his wages.

And nothing I have said suggests that the individual cannot see a return on his labor. I am saying, in fact, the by understanding the model, and removing artificial monopolies, the laborer can get a greater return. You are saying that in order to get that return, there needs to be a gov't granted monopoly. That is false.

True, as far as it goes, but the normal expectations for tangible goods does not apply to intangible goods. For example, selling cheap knockoffs of designer handbags has an empirical and detrimental effect on the value of the brand, which is IP, to wit, a trademark. The sellers of the counterfeit goods are stealing from the brand, and they are thieves.

Two points on this:

First, as I have made clear multiple times, trademark is a different issue -- it's about consumer protection, not property protection.

Second, you picked a bad example concerning knockoffs, given recent studies showing that the *reason* the fashion industry is so successful and continues to innovate is *because* of the lack of IP protections and the rise of knockoffs.

1. The government does not artificially limit the resource, but owner controls the availability of the resource.

This is flat out false. I am surprised you can claim that with a straight face. What is a patent or a copyright other than an artificial limit on an infinite resource?

2. Generally, the more limited the supply the greater the demand of the resource, giving away the product decreases the demand rather than increasing the demand.

This is also wrong. Go take a basic economics course and learn the relationship between price and demand. Anyone with even the most basic economic training would laugh you out of the room for claiming that a lower price decreases demand.

3. Historical evidence abounds if you look at the history of inventions that have reverted to the public domain, as Jefferson himself implied in your quotation.

Which historical evidence are you suggesting specifically because I have yet to see any? Instead, what we have seen, throughout history, is that an increase in resources increases output and greatly enhances the economy. I have yet to see a single report that says limiting resources increases the size of the economy.

4. Control of the supply of the product lies with the owner, not the government.

Who said otherwise? But the gov't is giving the control to the producers by allowing them to enforce artificial scarcity on the goods.

Which means that the ~owner~ controls the supply of the product, not the government. All the IP legel regime goes is grant the ~owner~ property rights in the product of his creative imagination. If an artist or inventer thinks his interests are better served by limiting distribution of a product, he or she will do so, not the government.

The content creator (not owner, mind you) is given a tool by the gov't to artificially limit the resource he has produced. Without the gov't assistance, the producer would not be able to limit it. That is the point I am making.

This is the result of the management of the property by the owner. Besides which, in the context of digitally distributed goods, like songs and movies, there is no physical constraint to the supply, as there would be for the production of film, tape, vinyl, etc. Digital distribution of a song without charge does not deprive the owner of any physical property interest but deprives him of the intangible thingy of its commercial value. Why buy the milk when you can get it for free?

Yes, why buy the milk when you can get it for free? But what if that free milk increases the demand for eggs and bacon and orange juice? Then wouldn't it make sense to start giving away the milk and selling the eggs and bacon and orange juice?

That's all we're saying here.

I think that you are beginning to see the implication of your position that IP is not 'property.' If it isn't property, then we cannot preserve to the artist or inventor the right to income from the thingy.

Not at all. I am saying that the implication of IP not being property is that artists do not rely on false scarcity, but instead can do a MUCH BETTER job making EVEN MORE money by associating that infinite good with other scarce goods. It opens up more opportunities for the artist to make more money. It does not take away their right to income at all.

In essence, what this does is bifurcate the property domain into tangible property, which the law protects, and intangible property, which (you believe) the law should not protect. This is, in a word, unjust exploitation of the creative energies of our intellectual workers.

Not at all. I am afraid that you are quite confused here. What I am saying is that rather than having the gov't artificially prop up the market by granting monopolies to individuals, we can let the free market price things appropriately. Other business models will arise that allow the content creators to profit greatly while still giving away the content for free. It is not exploitation, it is an efficient marketplace.

The only exploitation has come at the expense of society, that has inflated the market price for content by putting an artificial monopoly on it, limiting supply and hurting our economic prospects. That's quite dangerous.

: Re: It IS TOO Intellectual Property

This is just getting goofy, so if you will permit me to make a few points and pass over most of what you said, I'll to that -- and besides, my time now is extremely limited.

> And nothing I have said suggests that the
> individual cannot see a return on his labor.

That is exactly what you said when you said that intellectual property is not 'property.' The protection of property rights is one of the essential tasks of the commonwealth, even in primitive societies. If you declare that the product of the mind no longer deserves protection, you have deprived the person who thinks for a living the right to support himself by thinking.

>> 1. The government does not artificially limit
>> the resource, but owner controls the availability of
>> the resource.

> This is flat out false. I am surprised you can claim
> that with a straight face. What is a patent or a
> copyright other than an artificial limit on an
> infinite resource?

A patent or copyright gives the owner to control the availability of the resource. The government does not dictate what the owner of the copyright or patent does with it. Besides, the theft laws are just an 'artificial limit' on the control of a person's property.

>> 2. Generally, the more limited the supply the greater
>> the demand of the resource, giving away the
>> product decreases the demand rather than increasing
>> the demand.

> This is also wrong. Go take a basic economics
> course and learn the relationship between price
> and demand. Anyone with even the most basic
> economic training would laugh you out of the room
> for claiming that a lower price decreases demand.

What I said was that GIVING AWAY the product decreases the demand. If there is a demand for a million gallons of milk, and I give away a million gallons of milk, the demand for milk decreases. It might not fall to zero, but it will decrease.

>> 3. Historical evidence abounds if you look at the
>> history of inventions that have reverted to the
>> public domain, as Jefferson himself implied in
>> your quotation.

> Which historical evidence are you suggesting
> specifically because I have yet to see any? Instead,
> what we have seen, throughout history, is that an
> increase in resources increases output and
> greatly enhances the economy. I have yet to see a
> single report that says limiting resources increases
> the size of the economy.

You said, and I quote:
>>>> My point (and I believe I've said this multiple times
>>>> by now) is that by NOT artificially limiting the
>>>> resource, the laborer will have MORE opportunities
>>>> to exploit that labor.

My point is that, if you take away the ability to earn an income for producing a product, you take away the incentive to produce the product. You don't get more work out of a producer by telling him that he won't get paid for his production. You get less work from him.

>> 4. Control of the supply of the product lies with
>> the owner, not the government.

> Who said otherwise? But the gov't is giving the control
> to the producers by allowing them to enforce
> artificial scarcity on the goods.

You said it when you claimed that protection of IP was an artificial government monopoly. What the government does, and should do, is protect the owners from those that would trespass upon and take away their property.

> The content creator (not owner, mind you) is given
> a tool by the gov't to artificially limit the resource
> he has produced. Without the gov't assistance,
> the producer would not be able to limit it. That is
> the point I am making.

The point you are making is that the creator has no property rights in his creation, and that others can steal it and use it to their benefit without giving squat to the creator. Do you really think this is right by the person without whom the creation wouldn't exist?

> Yes, why buy the milk when you can get it for free?
> But what if that free milk increases the demand for
> eggs and bacon and orange juice? Then wouldn't it
> make sense to start giving away the milk and selling
> the eggs and bacon and orange juice?

Shouldn't this be the decision of the artist or inventor? They are free to do what they want with their IP. Just don't allow others to make that decision to the detriment of the creators.

>> I think that you are beginning to see the implication
>> of your position that IP is not 'property.' If it
>> isn't property, then we cannot preserve to the artist
>> or inventor the right to income from the thingy.

> Not at all. I am saying that the implication of IP
> not being property is that artists do not rely on
> false scarcity, but instead can do a MUCH BETTER
> job making EVEN MORE money by associating that
> infinite good with other scarce goods. It opens up
> more opportunities for the artist to make more money.
> It does not take away their right to income at all.

Alright, this is just plain loony. For the sake of argument, grant that all intellectual work is freely distributed in infinite quantity with no return to the worker. How will this help: (1) software developers who write software for a living (I am one of these.) (2) composers who write music for a living. (3) inventors who license their inventions for a living. (4) designers who make exclusive lines of clothing. (5) artists who produce limited editions of etchings and lithographs. (6) owners of brands like Sony, BMW, and Johnson & Johnson who rely on the premium of their brands over store and generic brands.

>> In essence, what this does is bifurcate the
>> property domain into tangible property, which the
>> law protects, and intangible property, which
>> (you believe) the law should not protect. This is,
>> in a word, unjust exploitation of the creative
>> energies of our intellectual workers.

> What I am saying is that rather than having the
> gov't artificially prop up the market by
> granting monopolies to individuals, we can let the
> free market price things appropriately.

How then can these individuals protect their intellectual property? If it were tangible goods, the taking of the goods without payment would constitute theft. Why shouldn't intangible property also be protected? The 'government monopoly' you refer to isn't a monopoly at all, but the protection accorded to a creator of intangible property in the same manner as protection accorded to a creator of tangible property. The decision whether to monopolize the idea lies with the person who thought of the idea, not the government, and this is true whether the idea is a work of art, an invention, or a service or trade mark.

> Other
> business models will arise that allow the content
> creators to profit greatly while still giving away
> the content for free. It is not exploitation, it is
> an efficient marketplace.

Please explain how the involuntary appropriation of another's effort without payment is not exploitation. OF COURSE it's exploitation!!

> The only exploitation has come at the expense of
> society, that has inflated the market price for content
> by putting an artificial monopoly on it, limiting
> supply and hurting our economic prospects. That's
> quite dangerous.

In fact, there is a balance, which you don't want to admit. As a society, we need to balance the rights of creators to their creations against the right of others to realize the benefits of the creations. I agree that you cannot grant absolutely exclusive rights to the creators, but you cannot completely deny them rights. Instead, you need to balence the right of the individual to be secure in his labor with the right of the society to see the benefit from the labor.

Re: : Re: It IS TOO Intellectual Property

This is just getting goofy, so if you will permit me to make a few points and pass over most of what you said, I'll to that -- and besides, my time now is extremely limited.

What is getting goofy? So far, you have repeatedly shown that you simply have misread nearly everything we have written.

That is exactly what you said when you said that intellectual property is not 'property.' The protection of property rights is one of the essential tasks of the commonwealth, even in primitive societies.

Yes, for PROPERTY. Not for ideas. And the reason why property rights are an essential part of even primitive societies is to ensure the efficient allocation of SCARCE resources. Property rights are not necessary for infinite resources because there is no question of efficient allocation, since anyone can have as much of the resource as they would like.

If you declare that the product of the mind no longer deserves protection, you have deprived the person who thinks for a living the right to support himself by thinking.

Charles, for the last time, go back and read what I actually wrote. I did not say what you say above. I have said the OPPOSITE. I am not depriving anyone the right to earn a living. I am saying that there are business models where they can EARN MORE by not relying on artificial scarcity, but to embrace the reality of infinite goods. For you to keep saying that we are talking about depriving someone the right to earn a living is fallacious. The fact that we have pointed this out to you repeatedly, and yet you insist that it remains true makes me wonder about your own reasoning facilities.

Let me make it abundantly clear: AT NO POINT, IN NO WAY, DO I SUGGEST THAT A CONTENT CREATOR DOES NOT HAVE A RIGHT TO EARN A LIVING.

I am merely suggesting that they need not use artificial scarcity to do so. There are many examples that prove this to be true. Your continued insistence that artificial scarcity is the only way to earn a living is false. Since it's an absolute, it only takes one example to prove false -- and we've already provided many more than 1.

So, please, stop falsely claiming that we have ever said that someone has no right to try to earn a living from what they produce. That is simply not true. We are merely saying the way to earn that living is to use the infinite goods to make scarce goods more valuable, and then sell those scarce goods.

A patent or copyright gives the owner to control the availability of the resource. The government does not dictate what the owner of the copyright or patent does with it. Besides, the theft laws are just an 'artificial limit' on the control of a person's property.

No. Theft laws are to deal with a REAL scarcity to prevent that scarcity from being abused. Patents and copyrights create an ARTIFICIAL scarcity in the belief that it encourages more creation.

Try to understand the difference.

What I said was that GIVING AWAY the product decreases the demand. If there is a demand for a million gallons of milk, and I give away a million gallons of milk, the demand for milk decreases. It might not fall to zero, but it will decrease.

Charles, I believe you are confusing diminishing returns with demand. They are two different concepts. Please crack open an econ text book. Demand does not decrease. Demand increases in the situation you describe above because more people will be willing to get the product at the new market price. The utility of each unit will decrease thanks to diminishing returns, but the overall demand increases.

This is econ 101 stuff. Seriously, go buy a textbook.

My point is that, if you take away the ability to earn an income for producing a product, you take away the incentive to produce the product.

Sure. IF YOU ACTUALLY ARE TAKING AWAY THE ABILITY TO EARN AN INCOME. But we are not. We are pointing to a way to earn a BIGGER income. I've said that. Over and over and over and over and over and over again. Why you insist that I said something different, I do not understand.

You seem to have a huge blindspot in thinking that the only way to make money from the production of content is to sell that content directly. That is simply not true, and for most of the history of mankind has not been true -- and yet content gets produced through a variety of other business models, many of which are more efficient and allow the creator opportunities to make more.

You said it when you claimed that protection of IP was an artificial government monopoly. What the government does, and should do, is protect the owners from those that would trespass upon and take away their property.

I am not "claiming" that IP protection is an artificial gov't monopoly, it is a FACT. It is exactly what IP protection is. It's putting an artificial gov't monopoly on the concepts covered by the law. That's not a debatable point.

And no one is "taking away" property. The originator still has it.

The point you are making is that the creator has no property rights in his creation, and that others can steal it and use it to their benefit without giving squat to the creator. Do you really think this is right by the person without whom the creation wouldn't exist?

Charles, I have already pointed out to you that you are confused over the terminology between theft and infringement. The fact that you refuse to change your language makes me wonder.

Charles, I assume that you went to school at some point to learn how to program. Every time you collect a salary, do you give money back to the people who taught you how to program? Based on your question above, if you are not giving a piece of your paycheck to every teacher you have had, then clearly, you are being a hypocrite.

The point of an infinite good, Charles, is that you do not need to compensate someone every time it's used.

That does NOT mean (as I've already said a bunch in this comment alone) that that person cannot make money. They just need to embrace a business model where the widespread distribution of those infinite goods makes a scarce good that they control much more valuable. And from that, they can profit greatly. That's just the free market at work.

Shouldn't this be the decision of the artist or inventor? They are free to do what they want with their IP. Just don't allow others to make that decision to the detriment of the creators.

No, Charles, in the end, it's the decision of the market.

The creator can set a price, but if the market doesn't support it, then, no, it is not the decision of the artist. Again, nowhere am I saying that anyone has the right to infringe if the creator does not want them to -- but I am saying that the market will determine that those who do not offer up their infinite goods for free will find themselves without a workable business model.

The only decision that's been made that's to the detriment of the creators is one where they get to rely on artificial scarcity. That LIMITS their opportunities to make money.

Alright, this is just plain loony. For the sake of argument, grant that all intellectual work is freely distributed in infinite quantity with no return to the worker.

I won't grant that, because I never said that. There are plenty of ways that a return goes to the worker. I have said so repeatedly. Your inability to understand it notwithstanding, I think you should practice a little reading comprehension and try to read what I wrote once again.

(1) software developers who write software for a living (I am one of these.)

Lots of folks make money as software developers without relying on IP. I employ a team of software developers who develop software that makes my business run. My developers get paid, and I use the software to run my business. None of that has anything to do with IP.

IBM makes a ton of money by offering services around Linux, and they contribute many programmers to Linux development, because they offer consulting services that are made more valuable by Linux.

Google employs a ton of software developers and they give away their product for free and make money on advertising.

Notice a pattern? In every case there are business models that do not rely on IP protections, but on using the software to make something else (something scarce) valuable.

(2) composers who write music for a living.

They still get paid to compose. There is still tremendous demand for music and there are lots of people looking for good songs. Lots of producers and singers are willing to pay for good new songs and can pay composers to compose those songs for them.

(3) inventors who license their inventions for a living.

Well, here you have set the conditions too narrowly. There need not be licensing inventions. You make money by selling products in the market. Yet, for the inventors, there are still many ways to make money by selling their expertise to help build the products, improve on the products, etc.

(4) designers who make exclusive lines of clothing.

Odd that you chose this one again, as I've already pointed out the recent research that noted the whole reason why designer clothes are so valuable is BECAUSE of the lack of copyright protection when it comes to clothing design and the rise of knockoff products. The fashion designers are doing just fine without copyright. In fact, it's a great example that proves my point. Their brand, and the brand identification of having an *authentic* version of a designer product has tremendous value, and that value is then reflected in the price.

(5) artists who produce limited editions of etchings and lithographs.

That's a scarce product. What's the problem?

(6) owners of brands like Sony, BMW, and Johnson & Johnson who rely on the premium of their brands over store and generic brands.

Again, they still retain that brand. As I said, trademark is a totally different issue having to do with consumer protection. So, if someone copies a Sony product and declares it a Sony product, I have nothign against that being stopped for the sake of consumer protection. And then, the authentic products still retain their value.

See, even by not granting your assumption I show how you are wrong on every point.

How then can these individuals protect their intellectual property?

This is like banging my head against a wall. They DON'T NEED TO PROTECT THEIR IP. They use the fact that their IP is infinite to make SOMETHING ELSE, something SCARCE much more valuable.

If it were tangible goods, the taking of the goods without payment would constitute theft.

Yes, because those goods are scarce and once taken are no longer there. That's not the case with an idea. That's why it's not theft.

Why shouldn't intangible property also be protected?

Because of that very reason. Because property is only needed for the allocation of scarce resources.

The 'government monopoly' you refer to isn't a monopoly at all, but the protection accorded to a creator of intangible property in the same manner as protection accorded to a creator of tangible property.

It is very much a monopoly and there is no debating that point. It is an attempt to artificially make an infinite resource act like a scarce good. But limiting infinite resources, by definition, shrinks a market.

Please explain how the involuntary appropriation of another's effort without payment is not exploitation. OF COURSE it's exploitation!!

There is no involuntary appropriation. Whatever gave you that idea? We are saying that the person themselves should recognize that they can earn more by giving away the good. They WANT TO give it away because it will earn them more money.

Since when is earning more money exploitation?

In fact, there is a balance, which you don't want to admit. As a society, we need to balance the rights of creators to their creations against the right of others to realize the benefits of the creations.

There only needs to be a balance if it's a zero sum world where the rights of consumers conflict with the rights of producers. If you can show that's not the case, then no balance is needed.

Charles, your level of misunderstanding here seems to get worse with every comment. I seriously suggest that you learn some basic economics before trying to reply again.

At the very least, try to take a minute to read what I have actually written rather than assuming, incorrectly, that I have said that we should deny anyone the right to make money. It's making you look foolish. Clearly, you are trying to think this through, but you seem to be arguing against a strawman. Read what I have actually said. Learn a little economics and then try again.

Re: Re: : Re: It IS TOO Intellectual Property

Let's cut to the chase.

I claim that 'intellectual property' is actually property. You claim that it isn't. Right?

What is property? Excuse me from throwing an extended quotation here. To summarize, this makes the point that the word 'property' encompasses a complex of rights, including the right to exclude others from tresspass.

"A property right is the exclusive authority to determine how a resource is used, whether that resource is owned by government or by individuals. Society approves the uses selected by the holder of the property right with governmental administered force and with social ostracism. If the resource is owned by the government, the agent who determines its use has to operate under a set of rules determined, in the United States, by Congress or by executive agencies it has charged with that role.

Private property rights have two other attributes in addition to determining the use of a resource. One is the exclusive right to the services of the resource. Thus, for example, the owner of an apartment with complete property rights to the apartment has the right to determine whether to rent it out and, if so, which tenant to rent to; to live in it himself; or to use it in any other peaceful way. That is the right to determine the use. If the owner rents out the apartment, he also has the right to all the rental income from the property. That is the right to the services of the resources (the rent).

Finally, a private property right includes the right to delegate, rent, or sell any portion of the rights by exchange or gift at whatever price the owner determines (provided someone is willing to pay that price). If I am not allowed to buy some rights from you and you therefore are not allowed to sell rights to me, private property rights are reduced. Thus, the three basic elements of private property are (1) exclusivity of rights to the choice of use of a resource, (2) exclusivity of rights to the services of a resource, and (3) rights to exchange the resource at mutually agreeable terms." Armen A. Alchian

My point is that it is fair, just, moral, and socially useful to preserve to the creators of intellectual property the rights to use, sell, exchange, or give away their property. You claim that this is unfair, unjust, immoral, and socially damaging, at least implicitly by your denial that IP constitutes property.

I don't feel the need to repeat any of my points. They are persuasive, and nothing you have written contradicts them in the slightest.

Your statement that intellectual property is not property is at odds with reality. You are living in a fantasy world of your own making. I suggest you wake up and smell the coffee.

You are free to argue for the abolition of property rights in intellectual property, which apparently is exactly what you want to do. However, you cannot elevate a falsehood to the truth by any amount of words.

Re: Re: Re: : Re: It IS TOO Intellectual Property

You claim that this is unfair, unjust, immoral, and socially damaging, at least implicitly by your denial that IP constitutes property.

Neither he (nor I) claimed anything of the kind. At this point, you are intentionally fabricating our arguments.

I don't feel the need to repeat any of my points. They are persuasive, and nothing you have written contradicts them in the slightest.

Considering you are intentionally misrepresenting everything we've posted, I'm not surprised you feel this way. You are wrong that anyone condoned infringement, you are wrong stating that infringement is theft, and you are wrong that an idea is property to be controlled.

Re: Re: Re: Re: : Re: It IS TOO Intellectual Prope

> Considering you are intentionally misrepresenting
> everything we've posted, I'm not surprised you feel
> this way. You are wrong that anyone condoned
> infringement, you are wrong stating that infringement
> is theft, and you are wrong that an idea is property
> to be controlled.

I feel like I discussing this issue with a bowl of jello. Every time I make the point, I get excuses, denials, and accusations.

Let's start over, if we can.

The point of the initial essay was that IP is not 'property.' Since this was explicit, you can't deny it.

I mostly agreed with what you said, except (mainly) the point that IP ~IS~ property. This is not an opinion on my part, but a simple statement of fact.

From there, we went off on a tanget of price, cost, value, scarcity, economics, and I don't know what all else, that actually has very little to do with the main point.

MAIN POINT: The creator of an idea (intellectual property) currently has under our legal system ownership of and the right to exclude others from use of the idea, whether it be a copyright, patent, or trademark. Moreover, this vesting of right in the creator is good, just, and beneficial.

Your suggestion that IP is not property means for all intents and purposes that the creator of an idea has no legal protection to exclude others and no ownership of the idea. When pushed, you seem to quibble, dodge, bob, weave, and generally make yourself hard to pin down.

Okay, I'll pose a simple question, one with a yes-or-no answer, and ask that you respond with a simple, straight answer. You can explain your answer how you will, but I would appreciate a straight answer. Here is the question:

Should our legal system afford the creator of an idea the same kinds of rights in the idea that it accords to tangible personal property (such as his toothbrush or shirt)?

To be real clear, the kinds of rights I am referring to include title to the idea, the right of quiet enjoyment, peaceable possession, the right to convey title to others, and the right to commercial exploitation. By 'idea' I mean the kinds of stuff that are currently covered by copyright, patent, and trademark, such as artistic works, inventions, and brands.

Re: Re: Re: Re: Re: : Re: It IS TOO Intellectual P

The point of the initial essay was that IP is not 'property.' Since this was explicit, you can't deny it.

I don't deny it, because it's correct. I said that IP is not property and most anyone who understands the subject agrees. They are two different types of entities.

I mostly agreed with what you said, except (mainly) the point that IP ~IS~ property. This is not an opinion on my part, but a simple statement of fact.

It is not a fact, because it is wrong. The two things have very distinctive and different characteristics. There are *some* characteristics that are the same, but many that are different. Calling them both "property" ignores the important characteristics that are different.

From there, we went off on a tanget of price, cost, value, scarcity, economics, and I don't know what all else, that actually has very little to do with the main point.

Actually, it has a tremendous relevance in explaining both the differences between property and "IP" but also in your failure to understand how business models would work just fine without IP laws in place.

The creator of an idea (intellectual property) currently has under our legal system ownership of and the right to exclude others from use of the idea, whether it be a copyright, patent, or trademark.

Indeed. No one denies this.

Moreover, this vesting of right in the creator is good, just, and beneficial.

We are not making a moral judgment here. You are. I am saying it's neither moral nor immoral. It's the law.

As for it being "beneficial" there is significant evidence to the contrary, but that's besides the point here.

Your suggestion that IP is not property means for all intents and purposes that the creator of an idea has no legal protection to exclude others and no ownership of the idea.

No, we absolutely agree that the patents and copyrights grant the holder of those rights the legal protections to exclude others. That doesn't make it the same thing as property however.

You seem to think we're saying something we are not. This has been pointed out to you repeatedly. Your inability to grasp this does not help your case.

Should our legal system afford the creator of an idea the same kinds of rights in the idea that it accords to tangible personal property (such as his toothbrush or shirt)?

It is entirely unnecessary for the legal system to do so.

That said, we don't deny that they do offer those protections -- but that does not mean that copyright or patents are property.

The very fact that you are asking this question though, shows you have not bothered to actually read what I have said.

Whether or not the legal system grants these rights is totally meaningless to the conversation. The point is that the creators themselves are better off ignoring those rights, and eventually the very need for those rights goes away. So it makes no difference if those rights exist or not. They exist, but it's an attempt to pretend that ideas are property, when they are not, and that leads to problems, that end up limiting economic activity.

Re: Re: Re: : Re: It IS TOO Intellectual Property

My point is that it is fair, just, moral, and socially useful to preserve to the creators of intellectual property the rights to use, sell, exchange, or give away their property. You claim that this is unfair, unjust, immoral, and socially damaging, at least implicitly by your denial that IP constitutes property.

Not at all. It has nothing to do with fairness, morality or justice. It has to do with FUNDAMENTAL ECONOMICS, a subject you have made clear you have no knowledge of and no interest in learning about.

What we have said is that creators would be better off by recognizing that they need not use IP rights -- while pointing out the vast differences between infinite goods and scarce goods. In doing so, we point out that the very core reasons that the concept of property exists (to deal with the allocation of scarce resources) does not apply to infinite goods.

I am repeating myself now.

I don't feel the need to repeat any of my points. They are persuasive, and nothing you have written contradicts them in the slightest.

Other than the fact that you keep stating that we have said stuff we have not, and whenever we point out factual evidence to the contrary of your points (such as with authors and designers) you simply ignore it. Also, when we point out your own ignorance (saying that free decreases demand) you also ignore that. It's one thing to be ignorant, it's another altogether to ignore it when people try to educate you.

Your statement that intellectual property is not property is at odds with reality. You are living in a fantasy world of your own making. I suggest you wake up and smell the coffee

It is not at odds with reality. Property has certain characteristics, including scarcity, rivalry, excludability, etc. that infinite goods simply do not have. They are different in very important ways. If you honestly believe they are the same then why do you not pay "property taxes" on your IP? And why does your regular property not go into the public domain after 20 years?

Even you must admit that there are clear differences between "property" and patents and copyrights.

Reality is that they are different. Now, once you come around to admitting that, you can discuss what that means in terms of how the laws should be set up. But to claim they are one and the same isn't just wrong, it's willful ignorance. No sane economists would agree with you.

You are free to argue for the abolition of property rights in intellectual property, which apparently is exactly what you want to do. However, you cannot elevate a falsehood to the truth by any amount of words

The only one expressing a falsehood is you. And I am not calling for the "abolition" of copyright or patents. I am saying that the holders of those rights will eventually recognize that they're better off without them -- at which point they will fade away, as they are simply not needed.

Once again, you continue to put false words in mine and Dan's mouths. Please refrain from doing so in the future.

balance - It IS TOO Intellectual Property

Sorry, I meant to respond to this.

> Ah, back to balance. Balance in IP is a myth:
> http://www.techdirt.com/articles/20071214/184433.shtml
> If you can offer up a system where both sides
> benefit and neither side is worse off, why do
> you need balance? Balance only makes sense in a
> zero sum game. Ideas are not a zero sum game.

In Mozart's day, opera goers hummed his tunes and sang them as they heard them performed from the stage. In our day, it's perhaps illegal to play a car radio with the window down, as suggested by a recent article on slashdot. There is the atmosphere among the P2P crowd (I am not one) that since the cost of a downloaded song is zero, the value must be zero. In my personal life, I am a musician and I will play a song learned by ear from a radio or record with a clear conscience, even though I know I am deliberately breaking the law if the tune is copyrighted.

By 'balance' I mean a correlation between the entertainment interest of the consumer and the commercial interest of the artist. It's not right for an artist to say, 'if you want to hear my song, pay me.' It's also not right for a consumer to say, 'I'll acquire your song and use it however I please without paying you one red cent.'

It's rather obvious to me that the artist is interested in deriving an income from his work and the consumer is interested in being entertained by the work. Figuring out a way to advance both interests is what I mean by 'balance.'

Property

The problem with your analysis that IP is property because it's how many of us hope to make a living. We don't want to be generic citizens who have no options. We want to get away from the cities and maybe have some time to ourselves. We can do this by inventing things, and we think we should be compensated.

Re: Property

The concept of "property" is really losing its meaning in terms of patents. Patents have now evolved in patenting concepts. Concepts are clearly not a form of property.

For example, you can patent a "bottle opener" of a specific design however you should not be able to patent the concept of "bottle opener". So it you invent a bottle opener and someone else invents another style of bottle opener you should not be able to claim infringement. (Competitors also spend lots of time and money developing products.)

Additionally, just because you invent something, does not mean that you are entitled to any compensation. It depends on a several factors. The most obvious one, is there even a market for your product? Even if there is a market for your product better alternatives to your product may exist. You have no intrinsic right prevent a competitor from entering a market a selling a competing product.

The free market is based on competition. If you spend a lot of money developing something and it flops to bad.

Yes, we are in a pretty pickle when it comes to software patents. One problem is the sheer volume of patent applications. I believe the FIX is with obviousness. You shouldn't be able to get a monopoly on something that is obvious to a practioner (like buying something over a network.) However, if it is a true invention, that is, a product of your creative imagination not obvious to a practioner, you should be able to exploit your invention for whatever economic value it has.

As to imaginative works, like music, poetry, art, etc., I would have to say that the RIAA and the MPAA is right in theory, but that the theoretical concepts don't seem to make much sense given the advances in technology. We appear to need an entirely new paradigm for works capable of being shared P2P.

The term Intellectual Property has an important de

Often one needs to describe an idea, or a product as a result of an idea, or collection there of, without getting tied up in copyrights, trademarks, licensing or any other form of ownership.

This idea may or may not have ownership attached to it, but my not so humble opinion is that the fact that it often refers to the idea/concept is the reason for the "intellectual" description, in that it has to be intellectualized to be interpreted and or understood - with no reference nor measure to the level of what we may deem intellectual.

Secondly, the term property should not refer to ownership, it should refer to fact that the idea is tangible, in that it is something that can be described, have attributes (or properties), etc.

The mere fact that it is tangible should not have to imply ownership or usage rights.

If we could separate this descriptive use from ownership and usage rights, we would be far better served.

Music for nothing and money for free - it doesnt w

A couple of things I felt like noting on the subject of scarcity in regards to emotive output (most music, some movies). Contrary to the beliefs of some of us, scarcity exists in the origination, production, and distribution, of music and especially so with movies. I take it as granted, nonetheless, that the media industry conglomerates are bilking the artists and the public. Regarding origination of emotive output - it comes directly from diverse life experience, abundant in of itself, and yet each individual (one would hope) has a unique set of life experience that is not exactly shared with many, if any, other individuals. Observable facts show, however, that there exists a set of marketable music that is not scarce (think pop music, rap, or dance music).
Anecdotal evidence suggests that easily marketable music can be considered nearly worthless even though it produces wealth. The same evidence suggests that people are willing to pay more money to creators for emotive output that they feel drawn to (Radiohead made money on that last album didn't they?)
Scarcity exists in the production of emotive output and I sincerely hope no one doubts this fact. No independent artist, record label, or movie producer has infinite funds to afford equipment, employees, film, etc. Scarcity exists in the distribution of emotive output as well. It's easy to think that since you just click a button and instantly get a copy of a song that it costs nothing to transmit that song even though you pay your ISP for bandwidth the same as the distributors do.
Let's keep the conversation going! This is excellent to see. We need a middle ground, not extremes. Music for nothing and money for free doesnt work.

Re: Music for nothing and money for free - it does

"Scarcity exists in the distribution of emotive output as well."

Scarcity exists as far as the physical medium is concerned, but the digital distribution of the output is effectively unlimited. I'm not sure how you can qualify bandwidth as a scarce resource when it is available in abundance.

Re: Re: Music for nothing and money for free - it

"Scarcity exists in the distribution of emotive output as well."

Scarcity exists as far as the physical medium is concerned, but the digital distribution of the output is effectively unlimited. I'm not sure how you can qualify bandwidth as a scarce resource when it is available in abundance.

While bandwidth, at the moment, might seem effectively unlimited, it is not in reality. New infrastructure has to be laid down, old hardware needs to be upgraded to support the new cabling, more hardware has to be added to support more users, etc.

You are correct in that it may be available in abundance now; however, the actions being taken by large ISP's (or at least thought about by ones other than Comcast), namely throttling bandwidth, points to the fact that ISP's have come to a point of approaching scarce bandwidth with the spread of digital distribution. In a larger city, this may not be noticible, but in relatively smaller cities bandwidth is still scarce and exorbitant in price.

Hmmm

Would Conceptual Property be any better? Implying that it was something that was conceived by that person. It implies that the concept is unique, or a different approach to a common problem, or a marked improvement upon a previous concept. And if it is, shouldn't that person be allowed to act on it without fear of that concept being preempted or blocked by someone with more resources or previous patent/copyright to a similar concept? Even though, speaking or publishing about the concept makes it available to everyone, that person should be allowed some protection to act on and make a profit from their own ideas in a capitalistic society, whether they be scientific or artistic. From what I've read in your previous posts that was what original patent and copyright was for. In the end though, IP or CP or some other acronym is an argument of semantics. There will always be some for ambiguity in any term used.
A lot of what I see causing issues in the tech industry, especially software wise, is that the same tools are being used by everyone. The tools are also powerful, provide portability and have a lot of inherency in what can be created with them. This is what has been pushed for years in the industry. But, this is scary for anyone who has marked investment in tech. There are only so many ways to create pieces of code. There are only so many ways to put transistors together. There are only so many ways to create a graphical interface, a word processor, a CPU, a GPU, or any other technical piece that works with what is status quo. At some point, relatively quickly, it becomes hard to differentiate the competition. The same can be said of the arts if you wish.
To protect themselves,instead of innovating and creating new concepts and new technology, tech companies are using the patent and copyright laws to put up roadblocks to, or profit from how others would use (such as patenting the use of pop-ups for advertising), the inherent features of the tools . Which has been said before so I won't go any further.
This is an attitude that is hurting the industry. Instead of expanding our knowledge and what we can do, we're constantly fighting over the same 10 square feet of earth. We're letting the power and ease of use of our tools blind us, and the government, to what we should be doing. Innovating, adapting and advancing. We're letting ourselves become weak because we're not pushing ourselves out there. We're not stepping out of the crowd and forcing them to follow us. Or, if you do step out, you get slapped down by someone powerful with a vested interest. Instead, we keep trying to prop up the same old paradigms that we've become accustomed to.
Of course, now that I've gone through all that, I suddenly realize I've been looking at this whole thing through capitalistic glasses. The idea of self profit blinds many people. If I were to look at things as a socialist, then the arguments would be different. Patents and copyrights are something that are detrimental to equality within a society because they restrict access to those ideas and concepts by the masses. To prevent this, all ideas would have to become public domain once expressed. The communal sharing of the ideas would allow further ideas to be developed more quickly. Which I believe is what the Open Source folks have been preaching all along. While this would be awesome for the society, it would really suck for the individual who wants to profit. It would mean they would need to have implemented the idea prior to announcing it. (Hmmm, no more vaporware.) It also means they have to run the risk during implementation that someone else will express the idea before he's done.
The reason I bring this up is that maybe what we're seeing IS the death of our old paradigms. OR at least a major clash between the old and the new.

A terminology outline.

Commercial and Public outputs could be either Intellectual or Emotive. Commercial Intellectual Output (CIO) should be more strictly enforced than Public Intellectual Output (PIO) but at the same time should have very strict standards of fair use, more in line with Constitutional wording. Emotive Outputs should have strict standards of attribution and creator (not producer) control. Commercial Emotive Outputs should require control of all net profit to be placed in the hands of the creators of said output. Public Outputs (PO) should have strict standards preventing exclusive commercial rights, which should be reserved for Commercial Outputs (CO).

Does it matter what we call the stuff as long as we recognize what is being produced?

It does not matter what we call it

The concepts remain the same, as do the disputes that surround them. So many people get hung up on labels that we end up with the following mishmash;

"A copyright or a patent is a government granted right associated with a particular piece of work or invention."
And
"It is a gov't granted monopoly. Even Jefferson and Madison were honest enough to admit that."

Rights cannot be granted by Government; Governments can only impose restrictions. Rights are concepts such as defense of one's self or property, free travel and free trade, as well as many other concepts, that are inherent in the nature of existence. They can be infringed, but they cannot be granted or stolen. It saddens me that so many of my fellow Americans forget or ignore that this is the fundamental foundation of our nation.

Monopoly is the most accurate word to use as it is inherent in the very nature of an idea. The Jefferson quote "...an idea, which an individual may exclusively possess..." indicates he understood that all ideas START as monopolies of those that have them. Jefferson goes on to show that once the idea is shared it is no longer a monopoly and lays the foundations for the idea that breaking this monopoly is really a good thing.

Copyright and patents are the government recognizing the monopoly inherent in the system and giving incentives to share the ideas they represent, thereby breaking the monopoly, as well as limiting the time frame those incentives will be given; at least in theory. The incentives, as applied today, are in the form of trade restrictions for anyone else that wants to use the idea covered by a patent or copyright. These restrictions do not stop the idea from spreading; they just make it more expensive to use.

Re: It does not matter what we call it

Lies, Lies, Lies...

“A patent or a copyright grants you the right to prevent anyone from using the content/idea/process they want to use.”

No, it doesn’t Mike, please don’t add things that are not true. Only the government can stop the use and even then there is no guarantee it will happen. You could even get your patent/copyright overturned if the argument is compelling enough.

Once again, the patent/copyright system and the government that supports them do not grant rights of any sort; they only grant incentives to share ideas.

Re: Lies, Lies, Lies...

Once again, the patent/copyright system and the government that supports them do not grant rights of any sort; they only grant incentives to share ideas.

The government issues patents and copyrights, which grant exclusive rights to their holders. Due to these rights, the owners have the ability to sue others that infringe on them, thus preventing their use. The purpose of patents and copyrights is to encourage innovation.

If you're going to try and correct someone, it helps if you use the actual definitions of words, instead of making them up.

Re: Re: Lies, Lies, Lies...

"The government issues patents and copyrights, which grant exclusive rights to their holders. Due to these rights, the owners have the ability to sue others that infringe on them, thus preventing their use. The purpose of patents and copyrights is to encourage innovation.

If you're going to try and correct someone, it helps if you use the actual definitions of words, instead of making them up."

I agree DanC, it does help if you use the actual definitions of words rather then deliberately screwing them up with other definitions. The government cannot grant rights I already have; it can merely recognize them.

Rights cannot be over turned in a court of law, patents can. If it can be over turned then it is not a right, it is a privilege. Patents grant privileges, not rights, to their holders.

Patents are not exclusive; they are restrictive. Once a patent is filed anyone can access it, as far as I know. Had I the where-withal I could start building Ipods today. If I do so without the permission of all the applicable patent holders, AND the legal weight available to those patent holders extends to my location, then I can be RESTRAINED from making them. If it doesn't extend then I can make them to my heart's content, which is a far cry from exclusive.

So to review; rights are inherent in the makeup of the thing being discussed. Monopoly is inherent in the very nature of ideas. Governments either recognize or infringe on rights, they cannot grant them. Patents are restrictive privileges, not exclusive rights. Patents are not monopolies, they are just the opposite.

Re: Re: Re: Lies, Lies, Lies...

Once a patent is filed anyone can access it, as far as I know. Had I the where-withal I could start building Ipods today.

By granting a patent, the right to sue for infringement is given to the patent holder. The enforcement of this right allows for the creation of a monopoly. Using your example, you wouldn't be able manufacture iPods without Apple filing a lawsuit. They would be able to do so because the right to sue is granted by the patent, which is not inherent.

legal defn of property

AIUI, property is not so much the right to use or dispose of something, but rather the right to exclude others from doing so. For example, you are often constrained from using your land as you wish - zoning laws preclude you from putting a factory in a residential neighborhood, you cannot develop on wetlands, you cannot mine, or even capture water runoff. And Caesar's armies will slaughter your livestock on their march through Gaul (just pray they leave you something).

In this sense, IP is proper property; with your patent on a steam engine you can prevent competition, but you cannot use a crank and a flywheel in your steam engine w/o reaching an agreement with Pickard (see Ch1 of Intellectual Monopoly).

Re: Intangible Property

Intangible Labor is not an oxymoron. Intellectual Labor makes more sense, though, because not all Intangible Labor is Intellectual. Labor has a long legal history. Think self-ownership of the fruits of labor and even contractual labor where ownership is passed on. Intellectual Labor should be distinguished from Emotive Labor, also. Works of academia and business contrasted with works of art.

"Google employs a ton of software developers and they give away their product for free and make money on advertising.

Notice a pattern? In every case there are business models that do not rely on IP protections, but on using the software to make something else (something scarce) valuable."

Using the example of Google, I am having a very difficult time identifying what is this "scarce something else" Google makes?

Yes, that company does give away software, some of which until fairly recently was "shareware", e.g., Picasa 2. In part because of its "benevolence" people flock to the site, download its toolbar, and then use the site as their primary search engine. Google obviously earns revenue from advertisers, much of which results from its ability to enable it advertisers (customers) to present ads target to specific users based upon the types of sites visited by such users.

Obviously, that is a business model that works for Google...but not every business operates in that same type of a competitive environment. Hence my quandry in trying to wrap my arms around precisely what is the point you are trying to make?

Re:

Using the example of Google, I am having a very difficult time identifying what is this "scarce something else" Google makes?

It's not something Google *makes*, but a scarce good that Google can monetize: your attention. Google makes software that captures your attention and they sell that to advertisers. The better their software works and the more accessible it is, the more of your attention they have and the better they're able to monetize that scarce good.

Obviously, that is a business model that works for Google...but not every business operates in that same type of a competitive environment. Hence my quandry in trying to wrap my arms around precisely what is the point you are trying to make?

It's the same framework I am discussing here: give away the infinite good and monetize the scarce good made more valuable because that infinite good is widely available.

For Google, the infinite good is their search software, and it makes your attention more valuable to advertisers, and that's how they monetize.

For IBM, the infinite good is Linux software, which makes the demand for computing systems and setting up and managing those systems (all scarce goods) more valuable, and that's how they monetize.

For Trent Reznor, the infinite good is his music, which makes demand for access to Trent himself (a scarce good) more valuable, so he sells that in the form of concerts and (more recently) a deluxe CD/DVD/Vinyl package with his (scarce) signature.

For Paulo Coehlo, the infinite good is the words he has written into the bestselling novel "The Alchemist." But those words drive demand for the book (scarce good) in a readable format. So he gives away the ebook for free and sells many thousands more books than before he gave the book away for free.

For Techdirt, the infinite good is the analysis we've done in the past, so we give much of that away for free so companies hire us to do more analysis in the future (a scarce good).

For the band The String Cheese Incident, the infinite good is their music, and the scarce good is their concerts -- so even beyond just selling concert tickets, they realized they had fans following them around the country, so they set up a travel agency to help book travel arrangements (a service that's a scarce good).

For BMW the infinite good is an interesting commercial (BMW Films) which they distribute widely to whoever wants it, and it increases the value of the scarce goods (BMW cars) which they monetize.

In every case, the infinite good makes some other scarce good more valuable and more easily monetized.

It IS TOO Intellectual Property

Okay, I'm done. You don't need an economics text, you need a dictionary.
>> The point of the initial essay was that IP is
>> not 'property.' Since this was explicit, you can't deny it.

> I don't deny it, because it's correct. I said that IP
> is not property and most anyone who understands the
> subject agrees. They are two different types of entities.

'Property' is that which a person possesses, that with respect to which the law grants ownership, that which a person has rights in that the law recognizes and enforces. 'Intellectual property' is manifestly property, because peopel may possess it, because the law grants ownership to it, and because the owner has rights in it which the legal system enforces. You continued insistance that IP isn't property is just a fantasy, a dream, and is clearly and unambiguously false.

> Whether or not the legal system grants these rights
> is totally meaningless to the conversation.

Huh? This was the burden you first undertook. Your first claim was that the legal system granted ~no~ rights in IP. This was the title of my first post, and a point that I have continued to make.

I'm done. You can have the last word, I won't be replying to any further posts, or even reading them for that matter. Like it or not, the legal system grants rights in IP, ergo, IP ~is~ property, and the legal system vindicates the rights of the owners of IP. You can claim that it isn't, but your claims make a mockery of any pretense of logic and reason.

Re: It IS TOO Intellectual Property

Huh? This was the burden you first undertook. Your first claim was that the legal system granted ~no~ rights in IP. This was the title of my first post, and a point that I have continued to make.

Charles, you remain confused. I did not say the government did not grant rights when it came to IP. I said that IP and property have different attributes.

Once again, you seem to be putting words in our mouths because your own responses hold no weight.

Like it or not, the legal system grants rights in IP, ergo, IP ~is~ property, and the legal system vindicates the rights of the owners of IP.

No, it grants certain rights, but they are not property rights. Property is rivalrous. IP is nonrivalrous. Property does not revert to the public domain. IP does. You pay property taxes on property. Not on IP. I could go on and on. The point is that they have very different characteristics.

I have never said, as you seem to falsely believe, that IP doesn't exist or that it doesn't grant certain rights to holders. I was just noting that tangible property and IP have very different characteristics, and to insist that IP is property is incorrect. You have failed to explain why that it is not correct, preferring instead, repeatedly, to point to the characteristics they have in common and then accusing us of saying something we have not.

No one denies that they have *some* characteristics in common. That is why people like you mistakenly refer to it as if it's the same as property. But the important point -- the point we were making, and the point Thomas Jefferson, Justice Blackmun, Milton Friedman and many other people smarter than both you and I have made -- is that there are some very different characteristics between infinite goods and scarce goods, and to act as if they are the same is incorrect. Yes, they have some overlapping characteristics, but they do not match completely. Therefore, it is inappropriate to call them property, because it ignores those different characteristics.

Re: Re: It IS TOO Intellectual Property

"Therefore, it is inappropriate to call them property, because it ignores those different characteristics."

Yes, it is inappropriate to use just the word property in relation to all types of property because the word is generic. An accurate description of patents, copyrights, and other intangibles is either "intangible property", "incorporeal property", or "choses in action".

In an earlier post you mentioned "property taxes" as somehow being a relevant to the discussion. Of course, you must agree that not all tangible property is taxed. Once purchased, I rather doubt a later tax is annually levied on all of your toothbrushes or other personal items in your home. Merely to point out that intangibles are the subject of taxation, some jurisdictions levy annual taxes on intangibles (stocks, bonds, and other incorporeal assets). Just like real property when it is sold, capital gains are assessed against incorporeal property, and most certainly this includes the "sale" of all substantial rights in patents and copyrights. Unlike the majority of real property, corporeal and incorporeal property having a finite life receive treatment under the IRC as depreciable property.

BTW, Justice Blackmun most definitely did not reach the conclusion you attribute to him. The court was faced with an entirely different issue, and that was whether or not a federal criminal statute of general applicability could lawfully be relied upon in the case of copyrights given that a specific criminal statute and its attendant consequences had been enacted by Congress as an integral part of US copyright law. The issue of patents and copyrights being "property" under the law is so well settled in our jurisprudence that to suggest otherwise is plainly wrong.

Re: Re: Re: It IS TOO Intellectual Property

Yes, it is inappropriate to use just the word property in relation to all types of property because the word is generic. An accurate description of patents, copyrights, and other intangibles is either "intangible property", "incorporeal property", or "choses in action".

Why are those more accurate than any of the other suggestions above?

In an earlier post you mentioned "property taxes" as somehow being a relevant to the discussion. Of course, you must agree that not all tangible property is taxed.

Indeed. But that's the point I'm making, isn't it?

BTW, Justice Blackmun most definitely did not reach the conclusion you attribute to him.

I didn't attribute to him any conclusion other than the one he stated: that infringement is not stealing. I did not say he said anything with regards to the question of IP = property. And I didn't "attribute" it to him, I quoted him.

The issue of patents and copyrights being "property" under the law is so well settled in our jurisprudence that to suggest otherwise is plainly wrong.

But we're not talking about it from the LEGAL language, we're talking about it in real life and from an economic perspective.

I'm beginning to think that these discussions should include a disclaimer that anyone who answers an economics question by saying "well the law says..." should be automatically barred from commenting (joking...).

Clearly, lots of people refer to it as property. But that does not mean it's correct. That was the entire point of this discussion, and even you must admit that IP has significantly different characteristics than tangible property -- and to attribute to IP the same rights as property is problematic.

Re: Re: Re: Re: It IS TOO Intellectual Property

"That was the entire point of this discussion, and even you must admit that IP has significantly different characteristics than tangible property -- and to attribute to IP the same rights as property is problematic."

Of course "IP", just like all other incorporeal property, has different property attributes than corporeal property. My difficulty with your position is that you seem intent on promoting that only "property" falling within your one "property model" can properly be called "property".

I accept that there are many, many business models, just as I accept that there are many, many "property models". Because one "property model" happens do displease you is no reason to proclaim that it is fallacious and should be consigned to obscurity as antithetical (in your view) to competitive markets.

I happen to agree that "ideas" are anything but scarce. Where we differ is that I do not believe the same can be said for "good" ideas.

Re: Re: Re: Re: Re: It IS TOO Intellectual Propert

Of course "IP", just like all other incorporeal property, has different property attributes than corporeal property. My difficulty with your position is that you seem intent on promoting that only "property" falling within your one "property model" can properly be called "property".

As I thought I made clear (apparently not...) my problem with using the term "property" is that it leads many to assume that it should be treated like tangible property. That leads to simple, but totally incorrect statements like "downloading a song is no different than stealing a CD."

I happen to agree that "ideas" are anything but scarce. Where we differ is that I do not believe the same can be said for "good" ideas.

Then you do not understand what "scarce" means. I am not talking about one idea as compared to others. I am talking about the question of whether or not an idea is rivalrous and excludable. It is not.

Re: Re: Re: Re: Re: Re: It IS TOO Intellectual Pro

"As I thought I made clear (apparently not...) my problem with using the term "property" is that it leads many to assume that it should be treated like tangible property. That leads to simple, but totally incorrect statements like "downloading a song is no different than stealing a CD.""

Perhaps it does lead some to assume it should be treated like tangible property, but then again the term "property" does have the beneficial effect of reinforcing in the minds of malfeasors that taking something without paying for it is morally and legally wrong, whether or not the property is tangible or intangible. As an aside, property is not an economic concept...it is a legal concept involving various rights recognized by law and enforceable in a court of law. Perhaps you should consider using words such as "goods", "articles of manufacture", etc. in lieu of the legal and at times amorphous concept of "property.

"Then you do not understand what "scarce" means. I am not talking about one idea as compared to others. I am talking about the question of whether or not an idea is rivalrous and excludable. It is not."

I am aware of what scarce means. Likewise, I am aware of rivalrous versus non-rivalrous. But to say that one is excludable and the other is not is in my view much too broad of a generalization. Yes, I am well aware of the oft used example that lighting a branch from an existing fire does not deny the originator of the fire from its use. At the same time, however, it is also fair to say that under this example the use from but a single fire and with no consequences for doing so strongly suggests a disincentive for the later user to not apply himself to the creation of one himself. In the latter circumstance there would now be two, which it seems hard to argue does provide a benefit to society.

Dare I say it, but there are times when what is "good" and "optimal" under economic theory does not necessarily relect that which is "just" and "right" as matters of public policy. I am fully cognizant that there do exist the holders of "IP" who can rightfully be viewed as engaging in abusive behavior that benefits no one save their business bottom lines. Of course, these are the ones who make the news and lead to discussions such as this. At the same time, however, there are rights holders who do not abuse the system and do use such rights in a manner that enhances their financial return while at the same time providing a real and substantial benefit to consumers without plunder and pillaging. These, for obvious reasons, are not deemed newsworthy and, hence, never enter into any discussions.

I have stated it before and it bears repeating. The vast majority of innovation (I am purposely staying away from copyrights given Congress' proclivity to make them ever expansive) never even enters into the "patent system", and yet somehow those companies manage to survive quite nicely. Others pursue patents even though in many cases they are unnecessary for achieving business objectives. Extrapolating this, however, to all forms of commerce disserves those businesses that operate within market segments where the ability to exert some measure of control over how their work product is needed if those businesses are to survive. Economic analysis may say the heck with them because greater economic good is achieved by withholding exclusionary rights, but it useful to relect on whether or not this is good public policy.

You have repeatedly challenged the notion that our patent laws encourage early disclosure. You have likewise repeatedly challenged the notion that our patent laws serve to encourage others to create their own solutions. To date your arguments in support of your position have been so broad and generalized as to defy any attempt to ascertain their merits and provide a thoughful rejoinder. On these points I will have to reserve judgement until such time as I see some "meat on dem' bones".

On a final note, I am still waiting to read a cogent argument why you assert that IP rights are an anachronism that will in time disappear when businesses realize they can proceed with having any need to rely on them.

Re: Re: Re: Re: Re: Re: Re: It IS TOO Intellectual

Perhaps it does lead some to assume it should be treated like tangible property, but then again the term "property" does have the beneficial effect of reinforcing in the minds of malfeasors that taking something without paying for it is morally and legally wrong, whether or not the property is tangible or intangible.

Again, the moral question is a separate one, which I'll discuss below, since you bring it up again later. And I disagree with the idea that it reinforces the legal side. It reinforces *some* aspect of it, but in an incorrect and unfair way. Is there fair use for regular property? Nope. So "reinforcing" that it's just like property actually gives people the wrong idea, and tends to limit their rights. It also reinforces the idea that IP should be infinite (as is property). Do you see why this might be a problem? Even you are complaining about the length of copyright...

As an aside, property is not an economic concept...it is a legal concept involving various rights recognized by law and enforceable in a court of law.

It is a legal concept only in that the laws were designed to deal with the economics. Laws don't exist in a vacuum.At the same time, however, it is also fair to say that under this example the use from but a single fire and with no consequences for doing so strongly suggests a disincentive for the later user to not apply himself to the creation of one himself. In the latter circumstance there would now be two, which it seems hard to argue does provide a benefit to society.

Then you clearly have not read the economic research I discussed. If there is demand, then a model for the creation will be created. What you say above assumes that the only reason to create fire is to gain monetary return from it. There are other benefits too, you recognize, and most of those other benefits are not harmed by sharing the fire.

The research of Eric Schiff is particularly damning to the idea that a lack of monopoly protections leads to disincentives to create. Other models exist, and in a dynamic world where constant innovation is expected, it is better to not protect ideas and have people compete to build better and better products.

Dare I say it, but there are times when what is "good" and "optimal" under economic theory does not necessarily relect that which is "just" and "right" as matters of public policy.

Ah, so now we are back to morality. I am not against discussing the moral arguments, but my question remains the same: if the economics shows that in a situation without IP rights, everyone ends up being better off, then doesn't the moral question go away?

How could it possibly be moral to set up a situation where everyone is worse off?

If you want to go down the path of claiming that IP is just and moral I can give you plenty of examples where it clearly is not. What you quickly learn is that it's much better to let the market sort things out and deal with the EXCEPTIONS (if there are any) to fix the morality, rather than trying to craft a system that declares what is moral and just, and ignores the unintended consequences that lead to more damage for nearly everyone.

So, I have trouble understanding the morality claim because all of the evidence suggests a world in which nearly everyone is worse off with IP rights. That doesn't seem very moral to me.

I am fully cognizant that there do exist the holders of "IP" who can rightfully be viewed as engaging in abusive behavior that benefits no one save their business bottom lines. Of course, these are the ones who make the news and lead to discussions such as this. At the same time, however, there are rights holders who do not abuse the system and do use such rights in a manner that enhances their financial return while at the same time providing a real and substantial benefit to consumers without plunder and pillaging. These, for obvious reasons, are not deemed newsworthy and, hence, never enter into any discussions.

We clearly define abuse of the system differently.

Extrapolating this, however, to all forms of commerce disserves those businesses that operate within market segments where the ability to exert some measure of control over how their work product is needed if those businesses are to survive.

If you can prove a case where a monopoly right is needed for a business to survive, I'd like to see it. As I said, in such a case, I am not against patent rights. The problem is that I have yet to see such a case. You make a big assumption in claiming that there are businesses that need monopoly rights to survive.

You have repeatedly challenged the notion that our patent laws encourage early disclosure. You have likewise repeatedly challenged the notion that our patent laws serve to encourage others to create their own solutions. To date your arguments in support of your position have been so broad and generalized as to defy any attempt to ascertain their merits and provide a thoughful rejoinder. On these points I will have to reserve judgement until such time as I see some "meat on dem' bones".

I have pointed you to a lot of research on the matter. Your failure to read it should not be held as me not pointing you to it.

I am sorry if you find my answers here to broad and generalized. For nearly a dozen years I've been outlining these arguments in great detail. It's rather tiresome to have to repeat the details via keyboard when you could do a search and find most of the "meat". Look around.

On a final note, I am still waiting to read a cogent argument why you assert that IP rights are an anachronism that will in time disappear when businesses realize they can proceed with having any need to rely on them.

Again, look around. I have pointed to countless research to explain why on a macro level, examples to explain why on a micro level, and explained the overall theory in great detail.

The simple argument is this, and I'll let you do some Google searches of this site to get the rest of it:

Economic growth is caused by non-rivalrous, non-excludable goods (see the research of Paul Romer to understand this). Economic growth, by its nature, offers more opportunities to profit. Limiting economic growth by artificially limiting non-rivalrous and non-excludable goods is effectively preventing economic growth. It is, quite literally, limiting the available resource pool of production.

Thus, if you understand the economics, and can understand how freeing up that resource will grow the economy, you can position yourself to monetize the result in a way that far exceeds the possibility if you keep the resource artificially scarce (this is pretty basic math here, but you can work out the equation if you want).

As more and more people recognize these simple equations, and position themselves accordingly, we will see more economic growth, and those that succeed will increasingly decrease their reliance on artificial scarcity in order to encourage more such growth. Those that continue to rely on artificial scarcities will find their own markets shrink, as customers move on to those that embrace the opportunities abundance provide.

General

Once again, if it can be GRANTED it is not a RIGHT, it is a PRIVELEDGE. The right to sue is inherent in the legal system of the U.S. Patents do not cover a right to sue but rather limit the scope of a lawsuit.

A lawsuit would not automatically stop my production; that would take armed officers actually confiscating the equipment. It also requires that those officers be of the correct jurisdiction. Even then, I could just buy more equipment and start again; you know, sort of like a meth lab.

As for the Joe Rogan and Carlos Mencina reference, please note the effectiveness of the DMCA notice as censorship; the video is still available from multiple sources. Until there is a defamation lawsuit started it is just a publicity stunt that you and most everyone else fell for.

"The copyright holder is a third party to the conversation between someone publishing infringing material and the person downloading the material. The copyright holder wants the state to prevent this conversation..."

This is not a conversation, it is a market transaction. Something of value, with a set market price, is being obtained in an illegal fashion. Theft is all about what and how something was obtained, not what was left behind. Police do not ask how many TVs you have left, they ask how many the burler got away with. Trying to focus on how much of something a victim has left is deliberate misdirection. Stopping theft (regardless of the final legal terminology such as burglary, embezzlement, larceny, looting, robbery, mugging, trespassing, shoplifting, intrusion, fraud, patent/copyright infringement) is not censorship.

"The creator of an idea (intellectual property) currently has under our legal system ownership of and the right to exclude others from use of the idea, whether it be a copyright, patent, or trademark."

Sorry, none of those confer the right to exclude the use of the idea. You seem to be confusing use with financial gain, which is the point of patents, copyright and trademarks. I can use any patent, copyright or trademark in existence today. I can even attempt financial gain using any of them. If successfully prosecuted my gain may be reduced or completely eliminated, but my use remains.

"Trademark is a consumer protection issue, not a property rights one."

It is not even a consumer protection issue since consumers can never be "protected" from themselves. Trademark is all about protecting money invested in advertisement attempting to build a brand. Consumer confusion is a self-willed phenomenon which can only be alleviated through education and cannot be forced on any consumer. You guys should really stop falling for marketing scams.

"There are *some* characteristics that are the same, but many that are different. Calling them both "property" ignores the important characteristics that are different."

By the same token, though, how are we advancing this by ignoring how they are similar? Would it not be easier to redefine the definition of property, limiting it to the points that are similar?

Re: General

As for the Joe Rogan and Carlos Mencina reference, please note the effectiveness of the DMCA notice as censorship; the video is still available from multiple sources.

As I noted, the Streisand effect countered the DMCA takedown notice. Regardless, it was an obvious attempt at censorship of criticism. You have said that those issuing DMCA takedown notices are simply trying to protect their material. I provided examples where illegal attempts were made, where the sole purpose was censorship.

You are essentially saying that because the illegal takedown notices are usually ineffective, there isn't a problem. In actuality, there is a fundamental flaw in the current DMCA legislation that allows for attempts at censorship via copyright infringement.

Re: http://www.patentlyo.com/

Yes, I read patentlyo quite frequently, but thanks for pointing it out. In fact, I linked to them in a story earlier today. The latest post on Patentlyo discusses a book which I had mentioned last week, and also touches on the topic of the next post in this series, which comes out tomorrow... so keep an eye out for it. :)

Benefacio

Benefacio gets my award for the most incisive comments on this page, and the commenter whose blog I'd most like to read... if he has one?

MLS comes second - has his head screwed on, but still yet to take the red pill and make the paradigm shift.

Mike, you've gone too far and thrown the baby out with the bathwater. Nothing is more clearly a man’s property than the product of his mind. That this property may be shared with the world at negligible cost does not sanction its theft. However, if a man shares his idea with the world, then presume he has arranged his own reward. Do not further reward him by suspending the liberty of every other man to their use of this idea or its expression - even for limited times.

Re: Re: Benefacio

Mike,

The baby you threw out is intellectual property, as natural a concept as material property, when you correctly threw out the unnatural and unethical practice of published works being considered the property of those privileged by copyright and patent.

All you have to do to understand my position is to recognise that IP behaves precisely like material property once copyright and patent have been abolished. Property doesn't need to be tangible to behave as property - this is why it's so useful to have 'material' vs 'intellectual' when distinguishing between the two forms.

Also, we've got to put to rest this crazy notion that the primary motivation and intent of thieves is to deprive owners of the property they steal from them - that if the owner remains unwitting as to their loss (appears not to be deprived) that no theft can therefore have occurred. Theft is to take someone's private property without the owner's authorisation - incentivised by having its benefit without equitable exchange.

All the wrong with IP is caused by copyright and patent, which confers property-like privileges over someone else's property.

Copyright & patent also create another crazy notion, that if someone owns an idea, that they therefore own all the other instances of a similar idea. If you and I have an indistinguishably similar idea, we don't own each other's ideas. That notion is created by a race to the patent office. In nature, we both own our own ideas - without conflict, without either of us even thinking that they have a claim to the idea whoever thinks of it.

I call the failure to realise that when two people have an indistinguishably similar idea that there are two ideas that each own (rather than one), copy-blindness. It's caused by being brainwshed by a copyright/patent culture.

If I sell you a copy of my idea, we both own an indistinguishably similar idea. They do not mystically collapse into a single entity, a single property, just because you can't tell the difference between them. That illusion is created by patent that says a patent holder automatically owns all ideas indistinguishably similar to his own.

It's one of those paradigm shifting moments of enlightenment when you have it. Unfortunately, it's one of those 'Sun does not go round the Earth' concepts where the simplicity of the explanation does not make the shift any easier - given the sun plainly does go round the earth for all to see.

Re: Re: Re: Benefacio

If something is indistinguishable, then by definition it is the identical thing. (this was proven by Leibniz, and is as true of electrons as it is of ideas - since electrons are identical, there can only be one electron that is actual in any quanta of time).

As a result your argument falls apart. The problem is that your underlying definition of 'idea' itself means 'exchangeable property'. We mistake things if we see 'property' as something added to a thing. Since the time of Plato property as something exchangeable has been the true meaning of both 'real' and 'thing'. The term 'real estate' brings out that meaning clearly.

If Intellectual Property...

Dirty words

"Intellectual property" is what I like to call a dirty word. A concept I've worked on is "Word Neutrality" and it says it's ok to stumble across some dirty word, as long as it's innocent. An example is a child cursing innocently, while repeating what Dad always says.

Everyone has their own dirty words, although most are more common. Homer once stretched his neck out of the car window to yell at someone walking down the street -- "NEEEEEEEEEEEERD." That's a nerdist -- someone prejudice against nerds. "NEEEEEEEEEEEEEEEERD" is a dirty word in my opinion because it's misused; it has a bad connotation, except when used innocently, not knowing that I take offense to being called a nerd. (I don't really get offended by it; this is just an example.)

I like "intellectual privilege", because yes, people do need oversimplifications, and yes it means we get to keep the acronym "IP", but especially because of the countless times I've heard and read the phrase "XYZZY is a privilege, not a right."

I'll suggest "Proprietary Information". It covers all information that has some ownership restrictions. The topic now includes trade secrets but it is all the same "type of stuff" and the body of law around it will change.

I say once it's published, it's public domain. Copyright enforcement is just another example of government protectionism for incumbents, just like when taxi companies are able to get Uber and Lyft chased out of their territory.

Problem is with property itself, not just intellectual property

Modern technology brings with it an ontological disruption, i.e. what things 'are' fundamentally changes. Heidegger referred to what determines what something is in the modern age as "Gestell", which simultaneously means Enframing and Apparatus: the technological thing itself can substitute for its essence and vice versa. This means that the meaning not just of property, which is the real meaning of 'thing' or 'object' within the older view of reality, but also of essence has changed. The meaning of property has changed, but so has 'ownership', 'value' and 'exchange'. It's not a reformulation with invariants that ensure continuity, there are no invariant terms.

We can see the effects in the difference between owning property in the old sense of something durable such as a book, and the new sense, where with a change, for instance, in the common e-book format or the delivery system the 'object', whether the e-book itself or the apparently more traditional 'device' on which I read it, can suddenly become worthless, since most of its value is in the network of delivery that supports it.

Techdirt spends a lot of time on both intellectual property, in the sense of something like an e-book, and also on technological things that initially appear like property in the old sense, but do not have the same mode of being. The difficulty is that trying to discuss things that are essentially different, that is they are different and their essence is different, using old terminology doesn't work; it becomes difficult to make any sense of the argument being put forward.

The failure of things like web ontology language are implicit in these changes, since what ontology itself means has also changed. When a disruption has no invariants between the 'before' and 'after' it's impossible to discuss the properly new with terms that make invalid assumptions based on what used to be implicit in them.

Re: Problem is with property itself, not just intellectual property

To explicate further. In the change from a dead-tree edition book to an e-book, the essence - what makes a book a book or 'bookness' has also changed, not just in how a book is determined as such, but in the sense that a book's 'essence' is not something invariable beyond or behind the real book but is itself a mutable, finite determination.

We can't use the term 'real' in the old sense at all to do with an e-book, since a 'real' has extension, location and durability that e-books completely lack. 'Virtual' is a transitional modifier, but in the old sense of 'real property' it's no longer 'real' nor 'property', yet in some sense it 'is' and is 'mine', so the problem is in the way we define a thing in the first place. The e-book loses certain determinations in the change, and gains others (for instance, a significant gain is the difficulty involved in theft of an e-book).

Because it's not a continuation but a disruption it's neither progress nor regress, since both imply an underlying continuaty that is lacking.

Separate Marginal Tax Rates

Property that is infinitely reproducible is just like money. However, money is borrowed into existence and interest is paid on that process. Since more government resources are required to protect IP, therefore IP income ought to be taxed at a either a greater marginal rate or add new margins over the current margin of USD250,000.

Infinite vs interminable

Intellectual property is not 'infinite', it is interminably reproducible at a marginal cost.

The problem is not infinite vs finite property, nor is it limited to IP in the first place. The problem, which is showing most clearly in IP at the moment, is in the notion of property itself. The following quote is full of the inanity of the common notions of property:

"Property that is infinitely reproducible is just like money. However, money is borrowed into existence and interest is paid on that process. Since more government resources are required to protect IP, therefore IP income ought to be taxed at a either a greater marginal rate or add new margins over the current margin of USD250,000."

First, money is not property, it is a measure of exchange. The substantialization of money as 'capital' is the biggest myth of our society. Most of the 'capital' or monetary accumulation cannot be realized in terms of either real estate, goods or services, and as such is for the most part fiction.

Second, anything whose value is dependent on something outside itself, i.e. a social or technological network of relations, can never be simple property. My iPhone is a perfect example, without continued support from the cellular networks and software developers it becomes almost instantly worthless. Thus anything other than a 'mere' thing can never be fully owned. The "internet of things" will create an analogous problem in physical products as we see currently in IP, except the problem is not interminable reproducibility, but the more fundamental loss of the commonly assumed meaning of ownership itself.

The above is not limited to IP or technology. The same is true even for real estate - without demand to utilize it, it isn't worth anything. Or to put it in more realistic terms, the less the median person can afford, the lower the value of the rentier property of the wealthy must eventually drop to, since at any higher price demand will disappear.

The resources necessary to protect property are as interminably reproducible as the 'property' itself. When property is nearly non-reproducible, the resources needed to protect it are extremely limited, as examples like Fort Knox or the Mona Lisa demonstrate. This limitation disappears further the more reproducible anything is.

The fundamental cost associated with non-intellectual goods is energy, if the ability to maintain a fictionally high cost of energy is lost, then non-intellectual goods may become as reproducible as intellectual goods.

Even without the latter, though, the notion we have of ownership is outdated. How many people are quite sure what they in fact own when it comes to an iPhone or a Kindle? The licensing on software at least is very clear: you don't own anything.

Property

A copyright or patent is simply a way to rewardInnovation and productivity. In our society, the corruptand dependant are always entitled. You should be able toprotect your ideas and productivity.The Mafia/Government is bankrupt and they still manage tomonopolize on everything. In fact, if your idea is toohelpful or cuts into their profits you're ideas will never see the light of day. When they do someone else will take credit and most likely the profits. This has been documented often.Be careful and try to stay out of the Mafias sights. Once the mafia has you in their sights, you'll never be free again.Again documented. It's a nice fairytale anyways.

Disturbing that "IP" protection accelerated.

Good Read, thanks.I took the east road reading the comments -- read just the blue ones. I find confusion over the term "Intellectual Property" is just what the economic policy makers wanted, in part. Government policy in trade agreements is all about protection of some industry.

Policy is a form of advertising. Imply ideas are property and soon, as I read here, folks will already have a bias towards the policy; IP = physical objects.

Intellectual servitude

I think the term "intellectual servitude" may be appropriate. Servitudes are rights over another person's real property , e.g. an easement is a right to cross someone else's land, but the easement itself doesn't exist, it's a purely conceptual thing. Likewise, copyrights are rights to prevent people from using their real property, e.g. books, CDs, etc., in certain ways, but the copyright itself doesn't exist--like an easement, it has no substance or location.

Basic Definitions

To write this article, you must not know what you're talking about. The term is not intelligent property, property that is intelligent. Intellectual is describing what TYPE of property it is, i.e. property of one's intellect, not its level of intelligence. It doesn't even acknowledge what the word property fully means. Yes, it can mean a belonging, an item, e.g. a house or land, but it can also mean a characteristic. It's like somebody saying "I still have all of my faculties" and somebody saying "What, you don't employ any teachers." That would be sheer ignorance wouldn't it, because having one's faculties is a different meaning that the faculty of a school, etc. So this article is ignorant and invalid, a straw man. The property or properties of somebody else's intellect are absolutely legitimately called intellectual property or properties, and they are not anybody else's.